UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


A  DIGEST 

OF    THE 

LAW  OF  EVIDENCE 

BY  THE  LATE 

SIR  JAMES  FITZTAMES  STEPHEN,  Bart.,  K.C.S.I.,  D.C.L. 

ONE  OF  THE  JUDGES  OF  THE  HIGH  COURT  OF  JUSTICE 


From  the  Fifth  Edition  (1899)  of  Sir  Herbert  Stephen,  Bart.,  of  the  Inner  Tem- 
ple, Barrister-at-Law,  Clerk  of  Assize  for  the  Northern  Circuit,  and 
Harry  Lushington  Stephen,  of  the  Inner  Temple, 
Esquire,  Barrister-at-Law. 


WITH    BOTH  GENERAL  AMERICAN  NOTES  AND  NOTES 

ESPECIALLY  ADAPTED  TO  THE  STATES  OF 

NEW   JERSEY,    MARYLAND   AND 

PENNSYLVANIA 


BY 

GEORGE     E.     BEERS 

or  thb  new  haven  bar;  of  the  faculty  of  the  YALE  law  school;  author  of  thi 

revision  of  Baldwin's  Connecticut  digest,  and  the  editions  of 

Stephen's  digest  for  new  york,  ohio,  Connecticut, 

illinois,  michigan,  etc. 

ASSISTED  BY 

ARTHUR    L.  CORBIN,  B.  A.,  LL.  B. 

OF  THE  FACULTY  OF  THE  VALE  LAW  SCHOOL 


HARTFORD,  CONN. 

DISSELL  PUBLISHING  COMPANY 

1904 


Entered,  according  to  Act  of  Congress,  in   the  year  1904, 

Bv  GEORGE  E.  I'.EERS, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


J.P.I  YON'    rr-"fA.sv 

nom  ndem 

A11AXY.      K.      T. 


AMERICAN     PREFACE 


The  present  work  is  an  attempt  to  adapt  the  English 
edition  of  Stephen's  Digest  to  the  needs  of  American 
lawyers  generally,  and  the  members  of  the  profession  in 
Pennsylvania,  New  Jersey  and  Maryland  in  particular. 
The  fact  that  the  profession  has  welcomed  the  previous 
editions  of  the  work  prepared  by  the  editor  of  this  edition 
leads  him  to  hope  that  the  present  work  may  be  found  use- 
ful by  those  for  whom  it  is  intended. 

The  text  of  the  English  edition  is  here  preserved  intact, 
the  American  notes  being  arranged  in  two  sets,  those  gen- 
eral, for  all  the  States,  and  those  local,  for  the  members  of 
the  bar  of  the  three  States  already  mentioned.  It  is  hoped 
that  the  book  in  this  form  may  serve  as  a  hand-book  for 
court  and  office  and  a  text  for  the  student.  The  book  is 
intended  as  a  manual  for  ready  reference  and  not  as  an 
extensive  treatise.  The  arrangement  adopted  will  enable 
the  judge  or  counsel  to  find  readily  the  English  rule  of 
Stephen  on  any  given  point,  the  trend  of  text-book  author- 
ity, a  few  leading  cases  from  his  own  State  and  from  other 
States,  and  concrete  illustrations  from  decided  cases. 

The  editor  wishes  to  express  his  appreciation  of  the 
laborious  and  efficient  services  of  his  colleague  in  the  un- 


AMERICAN  PREFACE. 


dertaking,  Mr.  Arthur  L.  Corbin,  without  whose  assistance 
the  preparation  of  the  work  would  have  been  impossible. 
The  local  notes  are  largely  from  his  pen. 

G.  E.  B. 

42  Church  St.,  New  Haven,  Conn.,  August  17,  1904. 


PREFACE    TO  THE  FIFTH    EDITION 


In  preparing  the  present  edition  of  this  work  we  have 
attempted  to  follow  as  closely  as  possible  the  principles 
on  which  it  was  originally  written  twenty-five  years  ago. 
"We  have  had  to  deal  with  the  two  new  Acts  of  importance 
— the  Prevention  of  Cruelty  to  Children  Act,  1894,  and 
the  Criminal  Evidence  Act,  1898.  It  is  not  possible  to 
incorporate  the  provisions  of  the  former  Act,  relating  to 
the  evidence  of  children  too  young  to  be  sworn,  with  the 
corresponding  parts  of  the  Criminal  Law  Amendment 
Act,  1885 ;  and  the  result  is  that  Article  123a  has  to  take 
the  form  of  a  confused  exception  to  the  general  rule, 
which,  in  fact,  correctly  represents  the  present  state  of  the 
law  with  which  it  deals.  The  Criminal  Evidence  Act, 
1898,  is,  from  a  draftsman's  point  of  view,  a  more  satis- 
factory measure,  but  for  practical  purposes  it  is  necessary 
to  treat  that  also  as  an  exception  to  a  rule  which  has  been 
abolished. 

We  hav3  incorporated  in  this  edition  a  few  new  cases, 
of  which  the  most  important  is  R.  v.  Lillyman,  [1896],  2 
Q.  B.  167.  Our  view  of  the  effect  of  this  case  has  neces- 
sitated a  long  note  (Note  V.,  and  cf.  pp.  11,  12),  which  we 
hope  may  meet  with  the  assent  of  the  profession  generally. 

All  writers  of  law  books  depend  largely  upon  one 
another,  and  as  this  Digest  was  designed  to  consist  of  the 


PREFACE  TO  FIFTH  EDITION. 


most  succinct  statement  of  principles  possible,  we  are  per- 
haps more  than  usually  indebted  to  other  authors  and  edi- 
tors. "We  have  spared  no  pains  in  taking  the  fullest 
advantage  of  the  labours  of  Mr.  Pitt-Lewis,  in  his  last  edi- 
tion of  '  Taylor  on  Evidence,'  and  of  those  of  Mr.  Phipson 
in  the  second  edition  of*  his  most  useful  work.  We  are 
also  under  a  special  obligation  to  Mr.  William  Wills.  He 
has  most  generously  allowed  us  to  appropriate  bodily  the 
Table  published  by  him  at  the  end  of  his  '  Lectures  on  the 
Law  of  Evidence,'  and  we  have  accordingly  reprinted  it 
with  a  few  slight  alterations.  [As  it  refers  exclusively  to- 
English  statutory  law  it  is  not  reprinted  in  this  edition.] 
Only  those  who  have  themselves  tried  to  prepare  such  a 
table  can  realize  how  great  is  the  labour  involved  in  its 
construction;  and,  after  having  begun  this  task,  and  dis- 
covered that  we  could  not  improve  upon  Mr.  Wills's  work, 
we  are  only  too  glad  to  take  advantage  of  his  kindness  and 
republish  his  Table,  instead  of  constructing  a  new  one  of 
which  his  must  necessarily  have  been  the  foundation. 

The  total  bulk  of  this  work  has  been  increased  from  228 
to  271  pages  since  the  last  edition.  As  this  is  a  consider- 
able growth  in  so  small  a  book,  it  may  be  well  to  state  that 
the  increase  in  the  text  is  five  pages,  in  the  notes  five 
pages,  and  in  the  index  nine  pages.  Mr.  Wills's  Table 
takes  up  twenty-four  pages. 

H.  S. 

H.  L.  S. 


June  25,  1899. 
4,  Paper  Buildings,  Temple. 


CONTENTS 


Introduction xiii-xxxi 

List  of  English  Abbreviations        ....     xxxiii-xxxv 

PART   I. 

RELEVANCY. 

Chapter  I. —  Preliminary. 

Art.  1.  Definition  of  Terms Pages  3-12 

Chapter  II. —  Of  Facts  in  issue  and  relevant  to  the  issue. 

Art.  2.  Facts  in  issue  and  facts  relevant  to  the  issue  may  be 
proved  —  3.  Relevancy  of  facts  forming  part  of  the  same  trans- 
action as  the  facts  in  issue  —  4.  Acts  of  conspirators  —  5.  Title — • 
6.  Customs  —  7.  Motive,  preparation,  subsequent  conduct,  explan- 
atory statements  —  8.  Statements  accompanying  acts,  complaints, 
statements  in  presence  of  a  person  —  9.  Facts  necessary  to  ex- 
plain or  introduce  relevant  facts 13-64 

Chapter  III. —  Occurrences  similar  to  but  unconnected  with 
the  Facts  in  issue,  irrelevant  except  in  certain 
cases. 

Art.  10.  Similar  but  unconnected  facts  — 11.  Acts  showing  inten- 
tion, good  faith,  etc. —  12.  Facts  showing  system  —  13.  Existence 
of  course  of  business  when  deemed  to  be  relevant     -       -       •    65-93 

Chapter  IV. —  Hearsay  irrelevant  except  in  certain  cases. 

Art.  14.  Hearsay  and  the  contents  of  documents  irrelevant    -  94-100 

Section    1. —  Hearsay   when   relevant. 

Art.  15.  Admission  defined  — 16.  Who  may  make  admissions  on 
behalf  of  others,  and  when  —  17.  Admissions  by  agents  and  per- 
sons jointly  interested  with  parties  — 18.  Admission  by  stran- 
gers— 19.  Admission  by  person  referred  to  by  party  —  20.  Admis- 

vii 


CONTENTS. 


sions  made  without  prejudice  —  21.  Confessions  defined  —  22.  Con- 
fession caused  by  inducement,  threat,  or  promise,  when  irrelevant 
in  Criminal  Proceeding  —  23.  Confessions  made  upon  oath,  etc. — 
24.  Confession  made  upon  a  promise  of  secrecy  —  25.  State- 
ments by  deceased  persons  when  deemed  to  be  relevant  —  26.  Dy- 
ing declaration  as  to  cause  of  death  —  27.  Declarations  made  in 
the  course  of  business  or  professional  duty  —  28.  Declarations 
against  interest  —  29.  Declarations  by  testators  as  to  contents  of 
will  —  30.  Declarations  as  to  public  and  general  rights  —  31.  Dec- 
larations as  to  pedigree  —  32.  Evidence  given  in  former  proceed- 
ings when  relevant 101-198 

Section  ii. — Statements  in  Books,  Documents,  and  Records, 
when  relevant. 
Art.  33.  Recitals  of  public  facts  in  statutes  and  proclamations  — 
34.  Relevancy  of  entry  in  public  record  made  in  performance  of 
duty  —  35.  Relevancy  of  statements  in  works  of  history,  maps, 
charts,  and  plans  —  36.  Entries  in  bankers'  books  —  37.  Bankers 
not  compellable  to  produce  their  books  —  38.  Judge's  powers  as 
to  bankers'  books  —  39.  "Judgment"  —  40.  All  judgments  con- 
clusive proof  of  their  legal  effect  —  41.  Judgments  conclusive 
as  between  parties  and  privies  of  facts  forming  ground  of  judg- 
ment—  42.  Statements  in  judgments  irrelevant  as  between  stran- 
gers, except  in  Admiralty  Cases  —  43.  Effect  of  judgment  not 
pleaded  as  an  estoppel  —  44.  Judgments  generally  deemed  to  be  ir- 
relevant as  between  strangers  —  45.  Judgments  conclusive  in  favour 
of  Judge  —  46.  Fraud,  collusion,  or  want  of  jurisdiction  may  be 
proved  —  47.    Foreign   judgments 199-255 

Chapter  V. —  Opinions,  when  relevant  and  when  not. 
Art.  48.  Opinion  generally  irrelevant  —  49.  Opinions  of  experts  on 
points  of  science  or  art  —  50.  Facts  bearing  upon  opinions  of 
experts  —  51.  Opinion  as  to  handwriting,  when  deemed  to  be  rele- 
vant —  52.  Comparison  of  handwritings  —  53.  Opinion  as  to  exist- 
ence of  marriage,  when  relevant  —  54.  Grounds  of  opinion,  when 
deemed  to  be  relevant 256-300 

Chapter  VI. —  Character,   when   deemed   to   be   relevant 

AND   WHEN    NOT. 

Art.  55.     Character  generally  irrelevant  —  56.  Evidence  of  character 
in  criminal  cases  —  57.  Character  as  affecting  damages   -     301-313 


CONTENTS. 


PART   H. 

ON  PROOF. 

Chapter   VII. —  Facts   proved    otherwise   than   by   Evidence  — 
Judicial  Notice. 

Art.  58.  Of  what  facts  the  Court  takes  judicial  notice  —  59.  As  to 
proof  of  such  facts  —  60.  Evidence  need  not  be  given  of  facts  ad- 
mitted       -        -        - 314-334 

Chapter  VIII. —  Of  Oral  Evidence. 

Art.  61.  Proof  of  facts  by  oral  evidence  —  62.  Oral  evidence  must 
be  direct 335-342 

Chapter    IX. —  Of    Documentary    Evidence  —  Primary    and 
Secondary,  and  Attested   Documents. 

Art.  63.  Proof  of  contents  of  documents  —  64.  Primary  evidence  — 
65.  Proof  of  documents  by  primary  evidence  —  66.  Proof  of  exe- 
cution of  document  required  by  law  to  be  attested  —  67.  Cases 
in  which  attesting  witness  need  not  be  called  —  68.  Proof  when 
attesting  witness  denies  the  execution  —  69.  Proof  of  document  not 
required  by  law  to  be  attested  —  70.  Secondary  evidence  —  71. 
Cases  in  which  secondary  evidence  relating  to  documents  may  be 
given  —  72.  Rules  as  to  notice  to  produce     -  343-383 

Chapter  X. —  Proof  of  Public  Documents. 

Art.  73.  Proof  of  public  documents  —  74.  Production  of  document 
itself  —  75.  Examined  copies  —  76.  General  records  of  the  realm  — 
77.  Exemplifications  —  78.  Copies  equivalent  to  exemplifications  — 
79.  Certified  copies  —  80.  Documents  admissible  throughout  the 
Queen's  dominions  —  81.  Queen's  printers'  copies  —  82.  Proof  of 
Irish  statutes  —  83.  Proclamations,  Orders  in  Council,  etc. —  84. 
Foreign  and  colonial  acts  of  state,  judgments,  etc. —  84a.  Answers 
of  Secretary  of  State  as  to  foreign  jurisdiction     -       -       -    384-409 


CONTENTS. 


Chapter  XI. —  Presumptions  as  to  Documents. 

Abt.  85.  Presumption  as  to  date  of  a  document  —  86.  Presumption 
as  to  stamp  of  a  document  —  87.  Presumption  as  to  sealing  and 
delivery  of  deeds  —  88.  Presumption  as  to  documents  thirty  years 
old  —  89.    Presumption   as    to   alterations     -  410-424 

Chapter  XII. —  Of  the  Exclusion  of  Oral  bt  Documentary  Evi- 
dence, and  of  the  Modification  and  Interpretation  of  Docu- 
mentary by  Oral  Evidence. 

Art.  90.  Evidence  of  terms  of  contracts,  grants,  and  other  disposi- 
tions of  property  reduced  to  a  documentary  form  —  91.  What  evi- 
dence may  be  given  for  the  interpretation  of  documents  —  92. 
Cases  to  which  articles  90  and  91  do  not  apply    -      -      -    425-459 


CONTENTS. 


PAUT  HI. 

PRODUCTION  AND  EFFECT  OF  EVIDENCE. 

Chapter  XIII. —  Burden  of  Pboof. 

Art.  93.  He  who  affirms  must  prove  —  94.  Presumption  of  innocence 

—  95.  On  whom  the  general  burden  of  proof  lies  —  96.  Burden  of 
proof  as  to  particular  fact  —  97.  Burden  of  proving  fact  to  be 
proved  to  make  evidence  admissible  —  97a.  Burden  of  proof  when 
parties  stand  in  a  fiduciary  relation 460-^492 

Chapter  XIV. —  On  Presumptions  and  Estoppels. 

Art.  98.  Presumption  of  legitimacy  —  99.  Presumption  of  death 
from  seven  years'  absence  —  100.  Presumption  of  lost  grant  —  101. 
Presumption  of  regularity  and  of  deeds  to  complete  title  —  102.  Es- 
toppel by  conduct  — 103.  Estoppel  of  tenant  and  licensee  — 
104.  Estoppel  of  acceptor  of  bill  of  exchange  —  105.  Estoppel  of 
bailee,  agent,  and  licensee 493-519 

Chapter  XV. —  Of  the   Competency  of  Witnesses. 

Art.   106.  Who  may  testify — 107.  What  witnesses  are  incompetent 

—  108.  Competency  in  Criminal  Cases  — 109.  Competency  in  pro- 
ceedings relating  to  adultery  —  110.  Communications  during  mar- 
riage—  111.  Judges  and  advocates  privileged  as  to  certain  ques- 
tions—  112.  Evidence  as  to  affairs  of  state  —  113.  Information  as 
to  commission  of  offences  —  114.  Competency  of  jurors  —  115.  Pro- 
fessional communications  —  116.  Confidential  communications  with 
legal  advisers  —  1 17.  Clergymen  and  medical  men  —  118.  Produc- 
tion of  title-deeds  of  witness  not  a  party 119.     Production  of 

documents  which  another  person,  having  possession,  could  refuse 
to  produce  —  120.  Witness  not  to  be  compelled  to  criminate  him- 
self—  121.  Corroboration,  when  required  —  121a.  Claim  on  estate 
of  deceased  person  —  122.  Number  of  witnesses     -       -       -    520-574 


CONTENTS. 


Chapter  XVI. —  Of  Taking  Oral  Evidence,  and  of  the  Exami- 
nation of  Witnesses. 

Art.  123.  Evidence  to  be  upon  oath,  except  in  certain  cases  — 
123a.  Unsworn  evidence  of  young  child  —  123b.  Unsworn  evidence 
of  a  barrister  —  124.  Form  of  oaths;  by  whom  they  may  be  ad- 
ministered —  125.  How  oral  evidence  may  be  taken  —  126.  Exam- 
ination in  chief,  cross-examination,  and  re-examination  —  127.  To 
what  matters  cross-examination  and  re-examination  must  be  di- 
rected—  128.  Leading  questions  —  129.  Questions  lawful  in  cross- 
examination  —  129a.  Judge's  discretion  as  to  cross-examination 
to  credit  —  130.  Exclusion  of  evidence  to  contradict  answers  to 
questions  testing  veracity — 131.  Statements  inconsistent  with 
present  testimony  may  be  proved — 132.  Cross-examination  as  to 
previous  statements  in  writing — 133.  Impeaching  credit  of  wit- 
ness—  134.  Offences  against  women — 135.  What  matters  may  be 
proved  in  reference  to  declarations  relevant  under  Articles  25-32 
—  136.  Refreshing  memory — 137.  Right  of  adverse  party  as  to 
writing  used  to  refresh  memory — 138.  Giving,  as  evidence,  docu- 
ment called  for  and  produced  on  notice —  139.  Using,  as  evidence, 
a  document  production  of  which  was  refused  on  notice    -    575-640 

Chapter  XVII. —  Of   Depositions. 

Art.  140.  Depositions  before  magistrates  — 141.  Depositions  under 
30  &  31  Vict.  c.  35,  s.  6  —  141a.  Depositions  under  the  Foreign 
Jurisdiction  Act,  1890  —  141b.  Depositions  of  children  —  142.  De- 
positions under  Merchant  Shipping  Act,  1894     -       -      •     641-648 

Chapter  XVIII. —  Of  Improper  Admission  and  Rejection  of 
Evidence. 

Art.  143 C49-652 

Appendix  of  Notes 653-714 

Index  715-756 


INTRODUCTION 


In  the  years  1870-71  I  drew  what  afterwards  became  the 
Indian  Evidence  Act  (Act  1  of  1872).  This  act  began  by 
repealing  (with  a  few  exceptions)  the  whole  of  the  Law  of 
Evidence  then  in  force  in  India,  and  proceeded  to  re-enact 
it  in  the  form  of  a  code  of  167  sections,  which  has  been  in 
operation  in  India  since  Sept.  1872.  I  am  informed  that  it 
is  generally  understood,  and  has  required  little  judicial 
commentary  or  exposition. 

In  the  autumn  of  1872  Lord  Coleridge  (then  Attorney- 
General)  employed  me  to  draw  a  similar  code  for  England. 
I  did  so  in  the  course  of  the  winter,  and  we  settled  it  in 
frequent  consultations.  It  was  ready  to  be  introduced 
early  in  the  Session  of  1873.  Lord  Coleridge  made  vari- 
ous attempts  to  bring  it  forward,  but  he  could  not  succeed 
till  the  very  last  day  of  the  Session.  He  said  a  few  words 
on  the  subject  on  the  5th  August,  1873,  just  before  Parlia- 
ment was  prorogued.  The  Bill  was  thus  never  made  pub- 
lic, though  I  believe  it  was  ordered  to  be  printed. 

It  was  drawn  on  the  model  of  the  Indian  Evidence  Act, 
and  contained  a  complete  system  of  law  upon  the  subject 
of  evidence. 

The  present  work  is  founded  upon  this  Bill,  though  it 
differs  from  it  in  various  respects.  Lord  Coleridge's  Bill 
proposed  a  variety  of  amendments  of  the  existing  law. 


INTRODUCTION. 


These  are  omitted  in  the  present  work,  which  is  intended 
to  represent  the  existing  law  exactly  as  it  stands.  The 
Bill,  of  course,  was  in  the  ordinary  form  of  an  Act  of 
Parliament.  In  the  book  I  have  allowed  myself  more 
freedom  of  expression,  though  I  have  spared  no  pains  to 
make  my  statements  precise  and  complete. 

In  December,  1875,  at  the  request  of  the  Council  of 
Legal  Education,  I  undertook  the  duties  of  Professor  of 
Common  Law,  at  the  Inns  of  Court,  and  I  chose  the  Law 
of  Evidence  for  the  subject  of  my  first  course  of  lectures. 
It  appeared  to  me  that  the  draft  Bill  which  I  had  prepared 
for  Lord  Coleridge  supplied  the  materials  for  such  a  state- 
ment of  the  law  as  would  enable  students  to  obtain  a  pre- 
cise and  systematic  acquaintance  with  it  in  a  moderate 
space  of  time,  and  without  a  degree  of  labour  dispropor- 
tionate to  its  importance  in  relation  to  other  branches  of 
the  law.  ~No  such  work,  so  far  as  I  know,  exists;  for  all 
the  existing  books  on  the  Law  of  Evidence  are  written  on 
the  usual  model  of  English  law-books,  which,  as  a  general 
rule,  aim  at  being  collections  more  or  less  complete  of  all 
the  authorities  upon  a  given  subject  to  which  a  judge 
would  listen  in  an  argument  in  court.  Such  works  often 
become,  under  the  hands  of  successive  editors,  the  reposi- 
tories of  an  extraordinary  amount  of  research,  but  they 
seem  to  me  to  have  the  effect  of  making  the  attainment  by 
direct  study  of  a  real  knowledge  of  the  law,  or  of  any 
branch  of  it  as  a  whole,  almost  impossible.  The  enormous 
mass  of  detail  and  illustration  which  they  contain,  and  the 
habit  into  which  their  writers  naturally  fall,  of  introduc- 
ing into  them  everything  which  has  any  sort  of  connec- 


INTRODUCTION. 


tion,  however  remote,  with  the  main  subject,  make  these 
books  useless  for  purposes  of  study,  though  they  may 
increase  their  utility  as  works  of  reference.  The  enormous 
size  and  length  of  the  standard  works  of  reference  is  a 
proof  of  this.  They  consist  of  thousands  of  pages  and  refer 
to  many  thousand  cases.  When  we  remember  that  the 
Law  of  Evidence  forms  only  one  branch  of  the  Law  of 
Procedure,  and  that  the  Substantive  Law  which  regulates 
rights  and  duties  ought  to  be  treated  independently  of  it, 
it  becomes  obvious  that  if  a  lawyer  is  to  have  anything 
better  than  a  familiarity  with  indexes,  he  must  gain  his 
knowledge  in  some  other  way  than  from  existing  books. 
No  doubt  such  knowledge  is  to  be  gained.  Experience 
gives  by  degrees,  in  favourable  cases,  a  comprehensive 
acquaintance  with  the  principles  of  the  law  with  which  a 
practitioner  is  conversant.  He  gets  to  see  that  it  is  shorter 
and  simpler  than  it  looks,  and  to  understand  that  the 
innumerable  cases  which  at  first  sight  appear  to  constitute 
the  law,  are  really  no  more  than  illustrations  of  a  compara- 
tively small  number  of  principles;  but  those  who  have 
gained  knowledge  of  this  kind  have  usually  no  opportunity 
to  impart  it  to  others.  Moreover,  they  acquire  it  very 
slowly,  and  with  needless  labour  themselves,  and  though 
knowledge  so  acquired  is  often  specially  vivid  and  well 
remembered,  it  is  often  fragmentary,  and  the  possession 
of  it  not  unfrequently  renders  those  who  have  it  sceptical 
as  to  the  possibility,  and  even  as  to  the  expediency,  of  pro- 
ducing anything  more  systematic  and  complete. 

The  circumstances  already  mentioned  led  me  to  put 
into  a  systematic  form  such  knowledge  of  the  subject  as 


INTRODUCTION. 


I  had  acquired.  This  work  is  the  result.  The  labour 
bestowed  upon  it  has,  I  may  say,  been  in  an  inverse  ratio 
to  its  size. 

My  object  in  it  has  been  to  separate  the  subject  of 
evidence  from  other  branches  of  the  law  with  which  it  has 
commonly  been  mixed  up;  to  reduce  it  into  a  compact 
systematic  form,  distributed  according  to  the  natural  divi- 
sion of  the  subject-matter;  and  to  compress  into  precise 
definite  rules,  illustrated  by  examples,  such  cases  and 
statutes  as  properly  relate  to  the  subject-matter  so  limited 
and  arranged.  I  have  attempted,  in  short,  to  make  a  digest 
of  the  law,  which,  if  it  were  thought  desirable,  might  be 
used  in  the  preparation  of  a  code,  and  which  will,  I  hope, 
be  useful,  not  only  to  professional  students,  but  to  every 
one  who  takes  an  intelligent  interest  in  a  part  of  the  law 
of  his  country  bearing  directly  on  every  kind  of  investi- 
gation into  question  of  fact,  as  well  as  on  every  branch  of 
litigation. 

The  Law  of  Evidence  is  composed  of  two  elements, 
namely,  first,  an  enormous  number  of  cases,  almost  all  of 
which  have  been  decided  in  the  course  of  the  last  100  or 
150  years,  and  which  have  already  been  collected  and 
classified  in  various  ways  by  a  succession  of  text  writers, 
from  Gilbert  and  Peake  to  Taylor  and  Roscoe;  secondly,  a 
comparatively  small  number  of  Acts  of  Parliament  which 
have  been  passed  in  the  course  of  the  last  thirty  or  forty 
years,  and  have  effected  a  highly  beneficial  revolution  in 
the  law  as  it  was  when  it  attracted  the  denunciations  of 
Bentham.  Writers  on  the  Law  of  Evidence  usually  refer 
to  statutes  by  the  hundred,  but  the  Acts  of  Parliament 


INTRODUCTION. 


which  really  relate  to  the  subject  are  but  few.  A  detailed 
account  of  this  matter  will  be  found  at  the  end  of  the 
volume,  in  Xote  XL VIII. 

The  arrangement  of  this  book  is  the  same  as  that  of  the 
Indian  Evidence  Act,  and  is  based  upon  the  distinction 
between  relevancy  and  proof,  that  is,  between  the  question 
What  facts  may  be  proved?  and  the  question  How  must 
a  fact  be  proved  assuming  that  proof  of  it  may  be  given? 
The  neglect  of  this  distinction,  which  is  concealed  by  the 
ambiguity  of  the  word  evidence  (a  word  which  sometimes 
means  testimony  and  at  other  times  relevancy),  has  thrown 
the  whole  subject  into  confusion,  and  has  made  what  is 
really  plain  enough  appear  almost  incomprehensible. 

In  my  'Introduction  to  the  Indian  Evidence  Act'  pub- 
lished in  1872,  and  in  speeches  made  in  the  Indian  Legis- 
lative Council,  I  enter  fully  upon  this  matter.  It  will  be 
sufficient  here  to  notice  shortly  the  principle  on  which  the 
arrangement  of  the  subject  is  based,  and  the  manner  in 
which  the  book  has  been  arranged  in  consequence. 

The  great  bulk  of  the  Law  of  Evidence  consists  of  nega- 
tive rules  declaring  what,  as  the  expression  runs,  is  not 
evidence. 

The  doctrine  that  all  the  facts  in  issue  and  relevant  to 
the  issue,  and  no  others,  may  be  proved,  is  the  unexpressed 
principle  which  forms  the  centre  of  and  gives  unity  to  all 
these  express  negative  rules.  To  me  these  rules  always  ap- 
peared to  form  a  hopeless  mass  of  confusion,  which  might 
be  remembered  by  a  great  effort,  but  could  not  be  under- 
stood as  a  whole,  or  reduced  to  a  system,  until  it  occurred 
to  me  to  ask  the  question,  What  is  this  evidence  which  you 


INTRODUCTION. 


tell  me  hearsay  is  not?  The  expression  "hearsay  is  not 
evidence"  seemed  to  assume  that  I  knew  by  the  light  of 
nature  what  evidence  was,  but  I  perceived  at  last  that  that 
was  just  what  I  did  not  know.  I  found  that  I  was  in  the 
position  of  a  person  who,  having  never  seen  a  cat,  is 
instructed  about  them  in  this  fashion:  "Lions  are  not  cats, 
nor  are  tigers  nor  leopards,  though  you  might  be  inclined 
to  think  they  were."  Show  me  a  cat  to  begin  with,  and  I 
at  once  understand  both  what  is  meant  by  saying  that  a  lion 
is  not  a  cat,  and  why  it  is  possible  to  call  him  one.  Tell 
me  what  evidence  is,  and  I  shall  be  able  to  understand  why 
you  say  that  this  and  that  class  of  facts  are  not  evidence. 
The  question,  "What  is  evidence?"  gradually  disclosed  the 
ambiguity  of  the  word.  To  describe  a  matter  of  fact  as 
"evidence"  in  the  sense  of  testimony  is  obviously  nonsense. 
JSTo  one  wants  to  be  told  that  hearsay,  whatever  else  it  is, 
is  not  testimony.  What  then  does  the  phrase  mean?  The 
only  possible  answer  is:  It  means  that  the  one  fact  either 
is  or  else  is  not  considered  by  the  person  using  the  expres- 
sion to  furnish  a  premiss  or  part  of  a  premiss  from  which 
the  existence  of  the  other  is  a  necessary  or  probable  infer- 
ence— in  other  words,  that  the  one  fact  is  or  is  not  relevant 
to  the  other.  When  the  inquiry  is  pushed  further,  and  the 
nature  of  relevancy  has  to  be  considered  in  itself,  and  apart 
from  legal  rules  about  it,  we  are  led  to  inductive  logic, 
which  shows  that  the  judicial  evidence  is  only  one  case  of 
the  general  problem  of  science — namely,  inferring  the  un- 
known from  the  known.  As  far  as  the  logical  theory  of 
the  matter  is  concerned,  this  is  an  ultimate  answer.  The 
logical  theory  was  cleared  up  by  Mr.  Mill.     Bentham  and 


INTRODUCTION. 


some  other  *  writers  had  more  or  less  discussed  the  con- 
nection of  logic  with  the  rules  of  evidence.  But  I  am  not 
aware  that  it  occurred  to  any  one  before  I  published  my 
'  Introduction  to  the  Indian  Evidence  Act '  to  point  out  in 
detail  the  very  close  resemblance  which  exists  between  Mr, 
Mill's  theory  and  the  existing  state  of  the  law. 

The  law  has  been  worked  out  by  degrees  by  many 
generations  of  judges  who  perceived  more  or  less  distinctly 
the  principle  on  which  it  ought  to  be  founded.  The  rules 
established  by  them  no  doubt  treat  as  relevant  some  facts 
which  cannot  perhaps  be  said  to  be  so.  More  frequently 
they  treat  as  irrelevant  facts  which  are  really  relevant,  but 
exceptions  excepted,  all  their  rules  are  reducible  to  the 
principle  that  facts  in  issue  or  relevant  to  the  issue,  and  no 
others,  may  be  proved. 

The  following  outline  of  the  contents  of  this  work  will 
show  how  in  arranging  it  I  have  applied  this  principle. 

All  law  may  be  divided  into  Substantive  Law,  by  which 
rights,  duties,  and  liabilities  are  defined,  and  the  Law  of 
Procedure,  by  which  the  Substantive  Law  is  applied  to 
particular  cases. 

The  Law  of  Evidence  is  that  part  of  the  Law  of  Proce- 
dure which,  with  a  view  to  ascertain  individual  rights  and 
liabilities  in  particular  cases,  decides : 

I.  What  facts  may,  and  what  may  not  be  proven  in  such 
cases; 

i  See,  e.  g.  that  able  and  interesting  book  'An  Essay  on  Circum- 
stantial Evidence,'  by  the  late  Mr.  Wills,  father  of  Mr.  Justice  Wills. 

Chief  Baron  Gilbert's  work  on  the  Law  of  Evidence  is  founded  ou 
Locke's  '  Essay,'  much  as  my  work  is  founded  on  Mill's  '  Logic.' 


INTRODUCTION. 


II.  What  sort  of  evidence  must  be  given  of  a  fact  which 
may  be  proved; 

III.  By  whom  and  in  what  manner  the  evidence  must  be 
produced  by  which  any  fact  is  to  be  proved. 

I.  The  facts  which  may  be  proved  are  facts  in  issue,  or 
facts  relevant  to  the  issue. 

Facts  in  issue  are  those  facts  upon  the  existence  of  which 
the  right  or  liability  to  be  ascertained  in  the  proceeding 
depends. 

Facts  relevant  to  the  issue  are  facts  from  the  existence 
of  which  inferences  as  to  the  existence  of  the  facts  in  issue 
may  be  drawn. 

A  fact  is  relevant  to  another  fact  when  the  existence  of 
the  one  can  be  shown  to  be  the  cause  or  one  of  the  causes, 
or  the  effect  or  one  of  the  effects,  of  the  existence  of  the 
other,  or  when  the  existence  of  the  one,  either  alone  or 
together  with  other  facts,  renders  the  existence  of  the  other 
highly  probable,  or  improbable,  according  to  the  common 
course  of  events.  * 

Four  classes  of  facts,  which  in  common  life  would 
usually  be  regarded  as  falling  within  this  definition  of 
relevancy,  are  excluded  from  it  by  the  Law  of  Evidence 
except  in  certain  cases : 

1.  Facts  similar  to,  but  not  specially  connected  with 
each  other.     (Res  inter  alios  actaz.) 

2.  The  fact  that  a  person  not  called  as  a  witness  has 
asserted  the  existence  of  any  fact.     (Hearsay.) 

3.  The  fact  that  any  person  is  of  opinion  that  a  fact 
exists.     (Opinion.) 

*  See  Note  I. 


INTRODUCTION. 


4.  The  fact  that  a  person's  character  is  such  as  to  render 
conduct  imputed  to  him  probable  or  improbable.  (Char- 
acter.) 

To  each  of  those  four  exclusive  rules  there  are,  however, 
important  exceptions,  which  are  defined  by  the  Law  of 
Evidence. 

II.  As  to  the  manner  in  which  a  fact  in  issue  or  relevant 
fact  must  be  proved. 

Some  facts  need  not  be  proved  at  all,  because  the  Court 
will  take  judicial  notice  of  them,  if  they  are  relevant  to  the 
issue. 

Every  fact  which  requires  proof  must  be  proved  either 
by  oral  or  by  documentary  evidence. 

Every  fact,  except  (speaking  generally)  the  contents  of 
a  document,  must  be  proved  by  oral  evidence.  Oral  evi- 
dence must  in  every  case  be  direct,  that  is  to  say,  it  must 
consist  of  an  assertion  by  the  person  who  gives  it  that  he 
directly  perceived  the  fact  to  the  existence  of  which  he 
testifies. 

Documentary  evidence  is  either  primary  or  secondary. 
Primary  evidence  is  the  document  itself  produced  in  court 
for  inspection. 

Secondary  evidence  varies  according  to  the  nature  of  the 
document.  In  the  case  of  private  documents  a  copy  of  the 
document,  or  an  oral  account  of  its  contents,  is  secondary 
evidence.  In  the  case  of  some  public  documents,  examined 
or  certified  copies,  or  exemplifications,  must  or  may  be 
produced  in  the  absence  of  the  documents  themselves. 

Whenever  any  public  or  private  transaction  has  been 
reduced  to  a  documentary  form,  the  document  in  which  it 


INTRODUCTION. 


is  recorded  becomes  exclusive  evidence  of  that  transaction, 
and  its  contents  cannot,  except  in  certain  cases  expressly 
defined,  be  varied  by  oral  evidence,  though  secondary 
evidence  may  be  given  of  the  contents  of  the  document. 

III.  As  to  the  person  by  whom,  and  the  manner  in  which 
the  proof  of  a  particular  fact  must  be  made. 

When  a  fact  is  to  be  proved,  evidence  must  be  given  of 
it  by  the  person  upon  whom  the  burden  of  proving  it  is 
imposed,  either  by  the  nature  of  the  issue  or  by  any  legal 
presumption,  unless  the  fact  is  one  which  the  party  i& 
estopped  from  proving  by  his  own  representations,  or  by 
his  conduct,  or  by  his  relation  to  the  opposite  party. 

The  witnesses  by  whom  a  fact  is  to  be  proved  must  be* 
competent.  With  very  few  exceptions,  every  one  is  now 
a  competent  witness  in  all  cases.  Competent  witnesses, 
however,  are  not  in  all  cases  compelled  or  even  permitted 
to  testify. 

The  evidence  must  be  given  upon  oath,  or  in  certain 
excepted  cases  without  oath.  The  witnesses  must  be  first 
examined  in  chief,  then  cross-examined,  and  then  re-exam- 
ined. Their  credit  may  be  tested  in  certain  ways,  and  the 
answers  which  they  give  to  questions  affecting  their  credit 
may  be  contradicted  in  certain  cases  and  not  in  others. 

This  brief  statement  will  show  what  I  regard  as  consti- 
tuting the  Law  of  Evidence  properly  so  called.  My  view  of 
it  excludes  many  things  which  are  often  regarded  as  form- 
ing part  of  it.  The  principal  subjects  thus  omitted  are  as 
follows: — 

I  regard  the  question,  What  may  be  proved  under  par- 
ticular issues?  (which  many  writers  treat  as  part  of  the  Law 


INTRODUCTION. 


of  Evidence)  as  belonging  partly  to  the  subject  of  pleading 
and  partly  to  each  of  the  different  branches  into  which  the 
Substantive  Law  may  be  divided. 

A  is  indicted  for  murder,  and  pleads  ISTot  Guilty.  This 
plea  puts  in  issue,  amongst  other  things,  the  presence  of 
any  state  of  mind  describable  as  malice  aforethought,  and 
all  matters  of  justification  or  extenuation. 

Starkie  and  Roscoe  treat  these  subjects  at  full  length,  as 
supplying  answers  to  the  question,  What  can  be  proved 
under  an  issue  of  Not  Guilty  on  an  indictment  for  murder? 
Mr.  Taylor  does  not  go  so  far  as  this;  but  a  great  part  of 
his  book  is  based  upon  a  similar  principle  of  classification. 
Thus  chapters  i.  and  ii.  of  Part  II.  are  rather  a  treatise  on 
pleading  than  a  treatise  on  evidence. 

Again,  I  have  dealt  very  shortly  with  the  whole  subject 
of  presumptions.  My  reason  is  that  they  also  appear  to 
me  to  belong  to  different  branches  of  the  Substantive  Law, 
and  to  be  unintelligible,  except  in  connection  with  them. 
Take  for  instance  the  presumption  that  every  one  knows 
the  law.  The  real  meaning  of  this  is  that,  speaking  gen- 
erally, ignorance  of  the  law  is  not  taken  as  an  excuse  for 
breaking  it.  This  rule  cannot  be  properly  appreciated  if 
it  is  treated  as  a  part  of  the  Law  of  Evidence.  It  belongs 
to  the  Criminal  Law.  In  the  same  way  numerous  presump- 
tions as  to  rights  of  property  (in  particular  easements  and 
incorporeal  hereditaments)  belong  not  to  the  Law  of  Evi- 
dence but  to  the  Law  of  Real  Property.  The  only  pre- 
sumptions which,  in  my  opinion,  ought  to  find  a  place  in  the 
Law  of  Evidence,  are  those  which  relate  to  facts  merely 
as  facts,  and  apart  from  the  particular  rights  which  they 


INTRODUCTION. 


constitute.  Thus  the  rule,  that  a  man  not  heard  of  for 
seven  years  is  presumed  to  be  dead,  might  be  equally  appli- 
cable to  a  dispute  as  to  the  validity  of  the  marriage,  an 
action  of  ejectment  by  a  reversioner  against  a  tenant  pur 
autre  vie,  the  admissibility  of  a  declaration  against  inter- 
est, and  many  other  subjects.  After  careful  considera- 
tion, I  have  put  a  few  presumptions  of  this  kind  into  a 
chapter  on  the  subject,  and  have  passed  over  the  rest  as 
belonging  to  different  branches  of  the  Substantive  Law. 

Practice,  again,  appears  to  me  to  differ  in  kind  from  the 
Law  of  Evidence.  The  rules  which  point  out  the  manner 
in  which  the  attendance  of  witnesses  is  to  be  procured, 
evidence  is  to  be  taken  on  commission,  depositions  are 
to  be  authenticated  and  forwarded  to  the  proper  officers, 
interrogatories  are  to  be  administered,  &c,  have  Kttle  to  do 
with  the  general  principles  which  regulate  the  relevancy 
and  proof  of  matters  of  fact.  Their  proper  place  would  be 
found  in  codes  of  civil  and  criminal  procedure.  I  have, 
however,  noticed  a  few  of  the  most  important  of  these 
matters. 

A  similar  remark  applies  to  a  great  mass  of  provisions 
as  to  the  proof  of  certain  particulars.  Under  the  head  of 
"  Public  Documents,"  Mr.  Taylor  gives  amongst  other 
things  a  list  of  all,  or  most,  of  the  statutory  provision? 
which  render  certificates  or  certified  copies  admissible  in 
particular  cases. 

To  take  an  illustration  at  random,  section  1458  (6th 
ed.,  1872),  begins  thus  :  "  The  registration  of  medical 
practitioners  under  the  Medical  Act  of  1858,  may  be 
proved  by  a  copy  of  the  '  Medical  Register,'  far  the  time 


INTRODUCTION. 


being,  purporting,"  &c.  I  do  not  wish  for  a  moment  to 
undervalue  the  practical  utility  of  such  information,  or  the 
industry  displayed  in  collecting  it  ;  but  such  provision  as 
this  appears  to  me  to  belong  not  to  the  Law  of  Evidence, 
but  to  the  law  relating  to  medical  men.  It  is  a  matter 
rather  for  an  index  or  schedule  than  for  a  legal  treatise, 
intended  to  be  studied,  understood,  and  borne  in  mind  in 
practice. 

On  several  other  points  the  distinction  between  the  Law 
of  Evidence  and  other  branches  of  the  law  is  more  difficult 
to  trace.  Eor  instance,  the  law  of  estoppel,  and  the  law 
relating  to  the  interpretation  of  written  instruments,  both 
run  into  the  Law  of  Evidence.  I  have  tried  to  draw  the 
line  in  the  case  of  estoppels  by  dealing  with  estoppels  vn 
pais  only,  to  the  exclusion  of  estoppels  by  deed  and  by 
matter  of  record,  which  must  be  pleaded  as  such  ;  and  in 
regard  to  the  law  of  written  instruments  by  stating  those 
rules  only  which  seemed  to  me  to  bear  directly  on  the 
question  whether  a  document  can  be  supplemented  or 
explained  by  oral  evidence. 

The  result  is  no  doubt  to  make  the  statement  of  the  law 
much  shorter  than  is  usual.  I  hope,  however,  that  com- 
petent judges  will  find  that,  as  far  as  it  goes,  the  statement 
is  both  full  and  correct.  As  to  brevity,  I  may  say,  in  the 
words  of  Lord  Mansfield  : — "The  law  does  not  consist 
of  particular  cases,  but  of  general  principles  which  are 
illustrated  and  explained  in  those  cases." * 

Every  one  will  express  somewhat  differently  the  princi- 
ples which  he  draws  from  a  number  of  illustrations,  and 

liJ.  v.  Bembridge,  1783,  3  Doug.  332. 


INTRODUCTION. 


this  is  one  source  of  that  quality  of  our  law  which  those 
who  dislike  it  describe  as  vagueness  and  uncertainty,  and 
those  who  like  it  as  elasticity.  I  dislike  the  quality  in 
question,  and  I  used  to  think  that  it  would  be  an  improve- 
ment if  the  law  were  once  for  all  enacted  in  a  distinct  form 
by  the  Legislature,  and  were  definitely  altered  from  time 
to  time  as  occasion  required.  For  many  years  I  did  my 
utmost  to  get  others  to  take  the  same  view  of  the  subject, 
but  I  am  now  convinced  by  experience  that  the  unwilling- 
ness of  the  Legislature  to  undertake  such  an  operation 
proceeds  from  a  want  of  confidence  in  its  power  to  deal 
with  such  subjects,  which  is  neither  unnatural  nor  un- 
founded. It  would  be  as  impossible  to  get  in  Parliament 
a  really  satisfactory  discussion  of  a  Bill  codifying  the  Law 
of  Evidence  as  to  get  a  committee  of  the  whole  House  to 
paint  a  picture.  It  would,  I  am  equally  well  satisfied,  be 
quite  as  difficult  at  present  to  get  Parliament  to  delegate  its 
powers  to  persons  capable  of  exercising  them  properly.  In 
the  meanwhile  the  Courts  can  decide  only  upon  cases  as 
they  actually  occur,  and  generations  may  pass  before  a 
doubt  is  set  at  rest  by  a  judicial  decision  expressly  in  point. 
Hence,  if  anything  considerable  is  to  be  done  towards  the 
reduction  of  the  law  to  a  system,  it  must,  at  present  at 
least,  be  done  by  private  writers. 

Legislation  proper  is  under  favourable  conditions  the 
test  way  of  making  the  law  ;  but  if  that  is  not  to  be  had, 
indirect  legislation,  the  influence  on  the  law  of  judges  and 
legal  writers,  who  deduce,  from  a  mass  of  precedents,  such 
principles  and  rules  as  appear  to  them  to  be  suggested  by 
the  great  bulk  of  the , authorities,  and  to  be  in  themselves 
rational  and  convenient,  is  very  much  better  than  none  at 


INTRODUCTION. 


all.  It  has,  indeed,  special  advantages,  which  this  is  not 
the  place  to  insist  upon.  I  do  not  think  the  law  can  be  in 
a  less  creditable  condition  than  that  of  an  enormous  mass 
of  isolated  decisions,  and  statutes  assuming  unstated  prin- 
ciples; cases  and  statutes  alike  being  accessible  only  by 
elaborate  indexes.  I  insist  upon  this  because  I  am  well 
aware  of  the  prejudice  which  exists  against  all  attempts 
to  state  the  law  simply,  and  of  the  rooted  belief  which 
exists  in  the  minds  of  many  lawyers  that  all  general  propo- 
sitions of  law  must  be  misleading  and  delusive,  and  that  law 
books  are  useless  except  as  indexes.  An  ancient  maxim 
says,  "  Omnis  definitio  in  jure  periculosa/'  Lord  Coke 
wrote,  "It  is  ever  good  to  rely  upon  the  books  at  large;  for 
many  times  compendia  sunt  dispendia,  and  Melius  est 
petere  fontes  quam  sectari  rivulos."  Mr.  Smith  chose  this 
expression  as  the  motto  of  his  '  Leading  Cases,'  and  the 
sentiment  which  it  embodies  has  exercised  immense  influ- 
ence over  our  law.  It  has  not  perhaps  been  sufficiently  ob- 
served that  when  Coke  wrote,  the  "  books  at  large,''  namely 
the  '  Year  Books  '  and  a  very  few  more  modern  reports,  con- 
tained probably  about  as  much  matter  as  two,  or  at  most 
three,  years  of  the  reports  published  by  the  Council  of 
Law  Reporting;  and  that  the  compendia  (such  books,  say, 
4  as  Fitzherbert's  '  Abridgment ')  were  merely  abridg- 
ments of  the  cases  in  the  '  Year  Books  '  classified  in  the 
roughest  possible  manner,  and  much  inferior  both  in  extent 
and  arrangement  to  such  a  book  as  Fisher's  '  Digest.'1 

In  our  own  days  it  appears  to  me  that  the  true  fontes 
- 

i  The  '  Year  Books  '  from  1307-1535,  228  years,  would  fill  not  more 
than  twenty-five  volumes  of  the  '  Law  Reports.' 


INTRODUCTION. 


are  not  to  bo  found  in  reported  cases,  but  in  the  rules  and 
principles  which  such  cases  imply,  and  that  the  cases  them- 
selves are  the  rivuli,the  following  of  which  is  a  dispendium. 
My  attempt  in  this  work  has  been  emphatically  petere 
fontes,  to  reduce  an  important  branch  of  the  law  to  the 
form  of  a  connected  system  of  intelligible  rules  and 
principles. 

Should  the  undertaking  be  favourably  received  by  the 
profession  and  the  public,  I  hope  to  apply  the  same  process 
to  some  other  branches  of  the  law;  for  the  more  I  study 
and  practise  it,  the  more  firmly  am  I  convinced  of  the  ex- 
cellence of  its  substance  and  the  defects  of  its  form.  Our 
earlier  writers,  from  Coke  to  Blackstone,  fell  into  the 
error  of  asserting  the  excellence  of  its  substance  in  an  ex- 
aggerated strain,  whilst  they  showed  much  insensibility  to 
defects,  both  of  substance  and  form,  which  in  their  time 
were  grievous  and  glaring.  Bentham  seems  to  me  in  many 
points  to  have  fallen  into  the  converse  error.  He  was  too 
keen  and  bitter  a  critic  to  recognise  the  substantial  merits 
of  the  system  which  he  attacked;  and  it  is  obvious  to  me 
that  he  had  not  that  mastery  of  the  law  itself  which  is 
unattainable  by  mere  theoretical  study,  even  if  the  stu- 
dent is,  as  Bentham  certainly  was,  a  man  of  talent,  ap- 
proaching closely  to  genius. 

During  the  last  generation  or  more  Bentham's  influence 
has  to  some  extent  declined,  partly  because  some  of  his 
books  are  like  exploded  shells,  buried  under  the  ruins 
which  they  have  made,  and  partly  because,  under  the  influ- 
ence of  some  of  the  most  distinguished  of  living  authors, 
great  attention  has  been  directed  to  legal  history,  and  in 
particular  to  the  study  of  Roman  Law.     It  would  be  diffi- 


INTRODUCTION. 


cult  to  exaggerate  the  value  of  these  studies,  but  their 
nature  and  use  are  liable  to  be  misunderstood.  This 
history  of  the  Roman  Law  no  doubt  throws  great  light  on 
the  history  of  our  own;  and  the  comparison  of  the  two 
great  bodies  of  law,  under  one  or  the  other  of  which  the 
laws  of  the  civilised  world  may  be  classified,  cannot  fail 
to  be  instructive;  but  the  history  of  bygone  institutions  is 
valuable  mainly  because  it  enables  us  to  understand,  and 
so  to  improve,  existing  institutions.  It  would  be  a  com- 
plete mistake  to  suppose  either  that  the  Roman  Law  is  in 
substance  wiser  than  our  own,  or  that  in  point  of  arrange- 
ment and  method  the  Institutes  and  the  Digest  are  any- 
thing but  warnings.  The  pseudo-philosophy  of  the  Insti- 
tutes, and  the  confusion  of  the  Digest,  are,  to  my  mind, 
infinitely  more  objectionable  than  the  absence  of  arrange- 
ment and  of  all  general  theories,  good  or  bad,  which  dis- 
tinguish the  Law  of  England. 

However  this  may  be,  I  trust  the  present  work  will  show 
that  the  Law  of  England  on  the  subject  to  which  it  refers 
is  full  of  sagacity  and  practical  experience,  and  is  capable 
of  being  thrown  into  a  form  at  once  plain,  short,  and 
systematic. 

I  wish,  in  conclusion,  to  direct  attention  to  the  manner 
in  which  I  have  dealt  with  such  parts  of  the  Statute  Law 
as  are  embodied  in  this  work.  I  have  given,  not  the  very 
words  of  the  enactments  referred  to,  but  what  I  understand 
to  be  their  effect,  though  in  doing  so  I  have  deviated  as 
little  as  possible  from  the  actual  words  employed.  I  have 
done  this  in  order  to  make  it  easier  to  study  the  subject  as 
a  whole.  Every  Act  of  Parliament  which  relates  to  the 
Law  of  Evidence  assumes  the  existence  of  the  unwritten 


INTRODUCTION. 


law.  It  cannot,  therefore,  be  fully  understood,  nor  can  its 
relation  to  other  parts  of  the  law  be  appreciated,  till  the 
unwritten  law  has  been  written  down  so  that  the  provisions 
of  particular  statutes  may  take  their  places  as  parts  of  it. 
When  this  is  done,  the  Statute  Law  itself  admits  of,  and 
even  requires,  very  great  abridgment.  In  many  cases  the 
result  of  a  number  of  separate  enactments  may  be  stated 
in  a  line  or  two.  For  instance,  the  old  Common  Law  as  to 
the  incompetency  of  certain  classes  of  witnesses  was 
removed  by  parts  of  six  different  Acts  of  Parliament — the 
net  result  of  which  is  given  in  four  short  articles 
(106-109). 

So,  too,  the  doctrine  of  incompetency  for  peculiar  or 
defective  religious  belief  has  been  removed  by  many 
different  enactments,  the  effect  of  which  is  shown  in  one 
article  (123). 

The  various  enactments  relating  to  documentary  evi- 
dence (see  chap,  x.)  appear  to  me  to  become  easy  to  follow 
and  to  appreciate  when  they  are  put  in  their  proper  places 
in  a  general  scheme  of  the  law,  and  arranged  according  to 
their  subject-matter.  By  rejecting  every  part  of  an  Act 
of  Parliament  except  the  actual  operative  words  which 
constitute  its  addition  to  the  law,  and  by  setting  it  (so  to 
speak)  in  a  definite  statement  of  the  unwritten  law  of 
which  it  assumes  the  existence,  it  is  possible  to  combine 
brevity  with  substantial  accuracy  and  fulness  of  state- 
ment to  an  extent  which  would  surprise  those  who  are 
acquainted  with  Acts  of  Parliament  only  as  they  stand  in 
the  Statute  Book.1     At  the  same  time  I  should  warn  any 

i  For  a  reference  to  statutes  dealing  strictly  with  evidence,  see 
Note  XLVIII.,  post. 


INTRODUCTION. 


one  who  may  use  this  book  for  the  purposes  of  actual  prac- 
tice in  or  out  of  court,  that  he  would  do  well  to  refer  to  the 
very  words  of  the  statutes  embodied  in  it.  It  is  very 
possible  that,  in  stating  their  effect  instead  of  their  actual 
words,  I  may  have  given  in  some  particulars  a  mistaken 
view  of  their  meaning. 

Such  are  the  means  by  which  I  have  endeavoured  to 
make  a  statement  of  the  Law  of  Evidence  which-  will  en- 
able not  only  students  of  law,  but  I  hope  any  intelligent 
person  who  cares  enough  about  the  subject  to  study  at- 
tentively what  I  have  written,  to  obtain  from  it  a  knowl- 
edge of  that  subject  at  once  comprehensive  and  exact — a 
knowledge  which  would  enable  him  to  follow  in  an  intelli- 
gent manner  the  proceedings  of  Courts  of  Justice,  and 
which  would  enable  him  to  study  cases  and  use  text-books 
of  the  common  kind  with  readiness  and  ease.  I  do  not  say 
more  than  this.  I  have  not  attempted  to  follow  the  matter 
out  into  its  minute  ramifications,  and  I  have  avoided  refer- 
ence to  what  after  all  are  little  more  than  matters  of  curi- 
osity. I  think,  however,  that  any  one  who  makes  himself 
thoroughly  acquainted  with  the  contents  of  this  book,  will 
know  fully  and  accurately  all  the  leading  principles  and 
rules  of  evidence  which  occur  in  actual  practice. 

If  I  am  entitled  to  generalise  at  all  from  my  own  ex- 
perience, I  think  that  even  those  who  are  already  well 
acquainted  with  the  subject  will  find  that  they  understand 
the  relations  of  its  different  parts,  and  therefore  the  parts 
themselves  more  completely  than  they  otherwise  would,  by 
being  enabled  to  take  them  in  at  one  view,  and  to  consider 
them  in  their  relation  to  each  other. 


LIST    OF    ENGLISH    ABBREVIATIONS 


A.  &  E.     •       -       •      -  Adolphus  &  Ellis's  Eeports. 
Atk.     -----  Atkyns's  Eeports. 

B.  &  A.     -       -       -       -  Barnewall   &   Alderson's   Eeports. 
B.  &  Ad.    -       -       -       -  Barnewall    &   Adolphus's   Eeports. 
B.  &  B.     -       -       -       -  Broderip    &    Bingham's    Eeports. 
B.  &  C.            -       -       -  Barnewall  &  Cresswell's  Eeports. 
B.  &  P.     -       -       -       -  Bosanquet  &  Puller's  Eeports. 

B.  &  S.     -       -       -       -  Best  &  Smith's  Eeports. 

B.  N.  P.     -       -       -       -  Buller's   Nisi   Prius. 

Beav. Beavan's  Eeports. 

Bell,    C.    C.     -       -       -  Bell's   Crown   Cases. 

Best Best  on  Evidence,  6th  ed. 

Bing.    -  -       -       -  Bingham's   Eeports. 

Bing.  N.  C.       -       -       -  Bingham's    New    Cases. 

Bligh  -       -       .       .  Bligh's   Eeports,   House   of   Lords. 

Br.   P.   C.  ...  Brown's    Parliamentary   Cases. 

Buller,  N.  P.     -       -       -  Buller's  Nisi  Prius. 

C.  &    F.     -       -       -       -  Clark   &   Finnelly's   Eeports. 
C.   &   J.      -       -       -       -  Crompton  &  Jervis's  Eeports. 

C.  &  Marsh.  -       -  Carrington  &  Marshman's  Eeports. 

C.  &   P.     -       -       -       -  Carrington   &   Payne's   Eeports. 

C.    B.         -  Common  Bench  Eeports. 

C.  B.  (N.  S.)     -       -       -  Common  Bench  Eeports.     New  Series. 

C.  M.  &  E.       -       -       -  Crompton,  Meeson,  &  Eoscoe's  Eeports. 
Camp.    -----  Campbell's  Eeports. 

Car.  &  Kir.     -       -       -  Carrington  &  Kirwan's  Eeports. 

Coke Coke's  Eeports. 

Cowp.         ....  Cowper's   Eeports. 

Cox Cox's  Eeports,  Chancery. 

Cox,  C.  C.       -       -       -  Cox's  Criminal   Cases. 

D.  (or  Dears.)  &  B.     -  Dearsley  &  Bell's  Crown  Cases. 

_        "'     „  _  £  Dearsley's  Crown  Cases. 

Dearsley  &  P.  -       -       -  ) 

De  G.  &  J.     -       -       -De  Gex  &  Jones's  Eeports- 

xxxiii 


LIST  OF  ABBREVIATIONS. 


De  G.  M.  &  G.     -       -     De    Gex,    Macnaghten,    &    Gordon's    Bank- 
ruptcy Cases. 
De  G.  &,  S.        -      -       -De  Gex  &   Smale's   Reports. 
Den.  C.  C.      -      -       -     Denison's  Crown  Cases. 

Doug. Douglas's  Reports. 

Dru.  &  War.    -  Drury  &  Warren's  Reports. 

E.  &  B.     -      -       -       -     Ellis  &  Blackburn's  Reports. 
Ea.      .....     East's  Reports. 

East,  P.  C.       -       -      -     East's  Pleas  of  the  Crown. 
Esp.      ....      -     Espinasse's  Reports. 
Ex.       .....     Exchequer  Reports. 

F.  &  F.     -      -       -       -  Foster  &   Finlason's  Reports. 

Gen.  View   Crim.   Law  Stephen's  General  View  of  the  Criminal  Law. 

Godbolt Godbolt's  Reports,  K.  B. 

H.  &  C.     -       -       -       -  Hurlstone  &  Coltman's  Reports. 

H.  &  N.     -       -       -       -  Hurlstone   &   Norman's   Reports, 

H.  L.  C.     -       -       -       -  House   of  Lords   Cases. 

Hale,  P.  C.       -       -       -  Hale's   Pleas   of  the   Crown. 

Hare Hare's  Reports. 

H.    Bl.  •  H.   Blackstone's   Reports. 

Ir.  Cir.  Rep.     -       -       -  Irish   Circuit  Reports. 

Ir.  Eq.  Rep.     -       -       -  Irish  Equity  Reports. 

Jac.  &  Wal.     -.-  Jacob  &  Walker's  Reports. 

Jebb,    C.   C.     -       -       -  Jebb's  Crown  Cases   (Ireland). 

K.  &  J.     -       -       -       -  Kay  &  Johnson's   Reports. 

Keen Keen's  Reports,   Chancery. 

L.   &  C.     -       -       -       -  Leigh  &  Cave's  Crown  Cases. 

Leach Leach's   Crown    Cases. 

M.  &  G.     -       -       -       -  Manning  &  Granger's  Reports. 

M.  &  K.     -       -       -       -  Mylne  &  Keen's  Reports. 

M.  &  M.    -       -       -       -  Moody  &   Malkin's   Reports. 

M.  &  R.     -       -       -       -  Moody  &  Ryan's  Reports. 

M.  &  S.     -       -       -       -  Maule  &   Selwyn's  Reports. 

M.   &  W.  ....  Meeson   &   Welsby's  Reports. 

Madd. Maddock's  Reports. 

Man.  &  Ry.       ...  Manning  &  Ryland's  Reports. 


LIST  OF  ABBREVIATIONS. 


McNally  Ev.  - 

-    McNally's   Rules   of   Evidence. 

Moo.   C.   C.     -      - 

-     Moody's  Crown  Cases. 

Moo.   P.   C.     -      - 

-    Moore's  Privy  Council  Reports. 

Mo.   &  Ro.       -      - 

-    Moody  &  Robinson's  Reports. 

N.  C.  -      -      -      - 

-     Bingham's  New  Cases. 

Pea.   R.     -      -      - 

-    Peake's  Reports. 

Phill.  .... 

-     Phillip's  Reports. 

Ph.    Ev.           -      - 

-    Phillips  on  Evidence,  10th  ed. 

-     Price's   Reports. 

Q.  B.     -     -      -      - 

-     Queen's  Bench  Reports. 

R.  &  R.     -      -      - 

-     Russell  &  Ryan's  Crown  Cases. 

Rep.      ---       - 

-     Coke's  Reports. 

R.  N.  P.,  or    -      - 
Roscoe,  N.  P. 

[•  Roscoe's  Nisi  Prius,   16th  ed. 

Russ.  Cri. 

-     Russell  on  Crimes,  6th  ed. 

Russ.  &  Myl.    - 

-     Russell  &  Mylne's   Reports,  Chancery. 

Selw.  N.  P.       -       - 

-     Selwyn's  Nisi  Prius. 

Simon     -  - 

-     Simons'  Reports. 

Sim.  (N.  S.)     -       - 

Simons'  Reports.     New  Series. 

Sim.    &   Stu.    - 

-     Simon   &    Stuart's    Reports. 

S.  L.  C,  or     -       - 
Smith.  L.  C.    -       - 

"  i  Smith's  Leading  Cases,  10th  ed. 

Star.     ---. 

Starkie's  Reports. 

Starkie,  or     - 
Star.  Ev.    - 

"  j.  Starkie  on  Evidence,  4th  ed. 

S.  T.,  or  St.  Tri.    - 

-     State  Trials. 

Swab.    Ad. 

-     Swabey's   Admiralty   Reports. 

Sw.   &  Tr.,  or 
Swa.  &  Tri.,  or     - 
S.    &    T.         -      - 

* )  Swabey  &  Tristram's  Reports,  Probate  and 
"  C      Divorce. 

T.  R.    -    -      -      - 

-     Term   Reports. 

T.  E.     -    -      -      - 

-     Taylor  on  Evidence,  9th  ed. 

Tpu.           -       -       - 

-     Taunton's  Reports. 

Ve.      -      -      -      - 

-     Vesey's  Reports. 

Vin.  Abr.         -      - 

-     Viner's  Abridgment. 

Wigram   -   - 

-     Wigram  on  Extrinsic  Evidence. 

Wills'  Circ.  Ev.     - 

-     Wills  on  Circumstantial  Evidence. 

Wils.,  or          - 
Wilson    -    -    - 

"  t  Wilson's  Reports. 

A    DIGEST 


LAW    OF    EVIDENCE 


A    DIGEST 

OP   THE 

LAW    OF    EVIDENCE. 

PART  I. 
RELEVANCY. 

CHAPTER  I. 

PRELIMINARY. 

Article  1.* 

definition  of  terms. 

In  this  book  the  following  words  and  expressions  are  used 
in  the  following  senses,  unless  a  different  intention  appears 
from  the  context. 

"Judge"  includes  all  persons  authorised  to  take  evi- 
dence, either  by  law  or  by  the  consent  of  the  parties. 

"  Fact "  includes  the  fact  that  any  mental  condition  of 
which  any  person  is  conscious  exists. 

"  Document "  means  any  substance  having  any  matter 
expressed  or  described  upon  it  by  marks  capable  of  being 
read. 

*  See  Note  I. 


.1  DIGEST  OF  [Past  I. 


"  Evidence  "  means  — 

(1)  Statements  made  by  witnesses  in  court  under  a  legal 
sanction,  in  relation  to  matters  of  fact  under  inquiry ; 

such  statements  are  called  oral  evidence : 

(2)  Documents  produced  for  the  inspection  of  the  Court 
or  judge; 

such  documents  are  called  documentary  evidence: 

u  Conclusive  Proof  "  means  evidence  upon  the  produc- 
tion of  which,  or  a  fact  upon  the  proof  of  which,  the  judge 
is  bound  by  law  to  regard  some  fact  as  proved,  and  to  ex- 
clude evidence  intended  to  disprove  it. 

"  A  presumption  "  means  a  rule  of  law  that  Courts  and 
judges  shall  draw  a  particular  inference  from  a  particular 
fact,  or  from  particular  evidence,  unless  and  until  the  truth 
of  such  inference  is  disproved. 

The  expression  "  facts  in  issue  "  means  — 

( 1 )  All  facts  which,  by  the  form  of  the  pleadings  in  any 
action,  are  affirmed  on  one  side  and  denied  on  the  other : 

(2)  In  actions  in  which  there  are  no  pleadings,  or  in 
which  the  form  of  the  pleadings  is  such  that  distinct  issues 
are  not  joined  between  the  parties,  all  facts  from  the  estab- 
lishment of  which  the  existence,  non-existence,  nature,  or 
extent  of  any  right,  liability,  or  disability  asserted  or  denied 
in  any  such  case  would  by  law  follow. 

The  word  "  relevant  "  means  that  any  two  facts  to  which 
it  is  applied  are  so  related  to  each  other  that  according  to 
the  common  course  of  events  one  either  taken  by  itself  or 
in  connection  with  other  facts  proves  or  renders  probable 
the  past,  present,  or  future  existence  or  non-existence  of 
the  other. 


Chap.  I.]  THE  LAW  OF  EVIDENCE. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  1,  14,  15, 
33,  44,  49,  50;  1  Taylor  on  Evidence  ( Chamberlayne's  9th  ed.),  sees.  1, 
70,  71,  109,  110,  p.  2183. 

"  Evidence  "  defined. — ■  Mr.  Thayer  defines  the  term  evidence  as 
"  any  matter  of  fact  which  is  furnished  to  a  legal  tribunal,"  regarding 
the  definition  of  the  text  as  too  narrow  in  that  it  excludes  matters 
of  fact  demonstrated  to  the  senses  of  the  judge,  as  where  a  coat  is 
put  on  in  court  to  show  its  fit.    Cases  on  Evidence,  p.  2. 

Evidence  presented  to  senses  of  judge. —  An  instance  of  evidence  not 
included  in  the  definition  of  the  text,  but  embraced  by  Mr.  Thayer's 
definition  quoted  in  the  note  to  this  article,  occurs  in  Brotcn  v.  Foster, 
113  Mass.  137,  where,  in  a  controversy  over  the  fit  of  a  coat,  the  coat 
is  put  on. 

Mental  condition. —  Mental  condition  is  to  be  established  as  a  fact. 
Wheelden  v.  Wilson,  44  Me.  1;  State  v.  Lee,  69  Conn.  197;  Chandler 
v.  Barrett,  21  La.  Ann.  58,  99  Am.  Dec.  701;  Titcomb  v.  Vantyle, 
84  111.  371;  Armstrong  v.  State,  30  Fla.  170,  17  L.  K.  A.  484. 

An  alleged  mental  condition  can  be  established  by  a  mere  prepon- 
derance of  proof.  Greene  v.  Phoenix  Hut.  Life  Ins.  Co.,  134  111.  310, 
10  L.  E.  A.  570. 

Where  mental  condition  is  in  issue,  evidence  of  condition  before 
and  after  the  time  in  question,  if  not  too  remote,  is  relevant.  White 
v.  Graves,  107  Mass.  325. 

"  Presumption  "  defined. —  "  The  term  '  presumption  '  is  used  to 
signify  that  which  may  be  assumed  without  proof,  or  taken  for 
granted."    Ward  v.  Metropolitan  Life  Ins.  Co.,  66  Conn.  238. 

The  conclusion  or  probable  inference  drawn  in  favor  of  the  exist- 
ence of  one  fact  from  others  in  proof  is  a  legal  presumption.  Tan- 
ner v.  Hughes,  53  Pa.  St.  (3  P.  F.  Smith)  289;  L7.  S.  v.  Scarcey 
(D.  C.)   26  Fed.  R.  435. 

"  A  presumption,  or  a  probability  —  for  in  this  connection  these 
words  mean  the  same  thing  —  is  an  inference  as  to  the  existence  or 
non-existence  of  one  fact  from  the  existence  or  non-existence  of  some 
other  fact,  founded  on  a  previous  experience  of  that  connection." 
Fay  v.  Reynolds,  60  Conn.  220. 

It  is  to  be  noted  that  the  author  uses  the  word  "  presumption  "  as 
referring  to  disputable  presumptions  of  law  only  and  treats  "  con- 


6  A  DIGEST  OF  [Part  I. 

elusive  presumptions  "  under  "  conclusive  proof."  Presumptions  of 
fact  form  no  part  of  the  law  of  evidence.  They  have  "  simply  the 
force  of  an  argument."  Ward  v.  Metropolitan  Life  Ins.  Co.,  66  Conn. 
239   (citing  Stephen's  Digest). 

Test  of  relevancy. —  "  The  law  furnishes  no  test  of  relevancy.  For 
this  it  tacitly  refers  to  logic  and  general  experience, —  assuming  that 
the  principles  of  reasoning  are  known  to  its  judges  and  ministers,  just 
as  a  vast  multitude  of  other  things  are  assumed  as  already  sufficiently 
known  to  them."    Thayer's  Preliminary  Treatise  on  Evidence,  p.  265. 

"  Relevant  "  defined. —  The  definition  of  "  relevant  "  of  the  text  is 
adopted  substantially  in  Plumb  v.  Curtis,  66  Conn.  166;  State  v. 
Blake,  69  Conn.  70,  both  of  which  cite  Stephen's  Digest. 

Illustrations  of  relevant  facts. —  Upon  the  question  as  to  whether  a 
sale  was  in  fraud  of  creditors,  the  declaration  of  the  purchaser  that  he 
was  not  in  condition  to  pay  anything  for  the  goods,  is  relevant.  Dale 
v.  Gower,  24  Me.  (11  Shep.)  533.    See  also  Trull  v.  True,  33  Me.  367. 

Testimony  as  to  the  management  and  speed  of  an  engine  at  a  cross- 
ing is  relevant  upon  the  question  of  the  management  and  speed,  about 
a  minute  later,  at  a  crossing  three-quarters  of  a  mile  distant.  Lyman 
v.  Boston  &  Maine  R.  R.  Co.,  66  N.  H.  200,  11  L.  R.  A.  367. 

In  an  action  against  a  railroad  company,  for  closing  a  street  on 
which  the  plaintiff  owned  a  lot,  evidence  of  the  amount  of  travel  pass- 
ing over  the  street  is  relevant.  Johnston  v.  Old  Colony  R.  R.  Co.,  18 
It.  I.  642,  29  Atl.  594. 

Testimony  that  a  wife  attended  to  all  her  husband's  business  is  rele- 
vant on  the  question  of  her  agency  in  a  particular  transaction.  San- 
born v.  Cole,  03  Vt.  590,   14  L.  R.  A.  210. 

Evidence  of  extravagance  is  relevant  in  connection  with  other 
evidence  in  an  embezzlement  case.  Hackett  v.  King,  8  Allen  (Mass.), 
144. 

That  an  employer  paid  for  the  board  of  some  of  his  employees  at 
various  jilares.  and  that  such  was  his  general  custom,  is  relevant  upon 
the  issue  of  whether  he  is  liable  for  the  board  of  a  particular  employee 
at  a  particular  place.     Divight  v.  Brown,  9  Conn.  89. 

Testimony. —  The  term  testimony  refers  to  evidence  given  by  wit- 
nesses and  excludes  documentary  evidence.  Dibble  v.  Dimmick, 
143  N.  Y.  549,  554. 

Evidence  presented  to  the  senses  of  the  triers. — A  physical  object, 
e.  q..  a  piece  of  iron,  may,  under  proper  circumstances,  be  exhibited 
to  the  jury.     King  v.  Neiv  York  Central  Railroad  Co.,  72  N.  Y.  607. 


Chap.  L]  THE  LAW  OF  EVIDENCE.  7 

Moral  evidence. —  Moral  evidence  is  evidence  sufficient  to  induce 
a  belief  upon  which  men  would  act  in  their  own  affairs.  BabcocJc 
v.  Fitchburg  It.  R.  Co.,  140  N.  Y.  308,  311. 

Cumulative  evidence. —  Cumulative  evidence  is  evidence  of  the 
same  kind  to  the  same  point.  People  v.  Superior  Court,  10  Wend. 
285,  294. 

The  fact  that  evidence  is  cumulative  does  not  in  many  instances 
lessen  its  importance.  Abenheim  v.  Samuels,  22  N.  Y.  St.  R.  636, 
5  N.  Y.  Supp.  117,  16  N.  Y.  St.  R.  907. 

Circumstantial  evidence. —  Circumstantial  evidence  is  evidence  of 
facts  from  which  the  existence  of  other  facts  may  be  inferred.  Peo- 
ple v.  Harris,  136  N.  Y.  423. 

It  is  admissible  both  in  civil  and  in  criminal  cases,  and  sometimes 
is  the  most  convincing  that  can  be  had.  People  v.  Videto,  1  Park. 
603;  People  v.  Davis,  46  N.  Y.  St.  R.  213;  9  N.  Y.  Crim.  334; 
affirmed,  on  opinion  below,  in  135  N.  Y.  646. 

It  is  not  error  to  refuse  to  charge  that  direct  evidence  is  always 
the  most  satisfactory.  People  v.  Johnson,  140  N.  Y.  350,  55  N.  Y. 
St.  R.  783. 

Difference  between  evidence  and  testimony. — Jones  v.  Gregory,  48 
111.  A  pp.  228. 

Prima  facie  evidence  defined  in  Lovell  v.  Drainage  District,  159 
111.   188:   McChesney  v.   Chicago,   159  111.  223. 

Changing  rules  of  evidence. —  The  legislature  has  power  to  change 
the  rules  of  evidence.  Such  changes  affect  matters  of  procedure 
only,  do  not  impair  the  obligation  of  contracts  or  contravene  any 
provision  of  the  Constitution.  C.}  B.  cC-  Q.  R.  R.  Co.  v.  Jones,  149 
111.  361 ;  Gage  v.  Caraher,  125  111.  447,  451. 

New  Jersey. 

Cumulative  evidence. —  Cumulative  evidence  means  "  additional  evi- 
dence to  support  the  same  point,  and  which  is  of  the  same  character 
with  evidence  already  produced."  Manufacturing  Co.  v.  Van  Riper, 
33  N.  J.  L.  156. 

Material  evidence  defined. —  Quick  v.  Lilly,  3  N.  J.  Eq.  257. 

Presumptions. —  Presumptions  of  law  and  presumptions  of  fact 
distinguished.  Snediker  v.  Everingham,  27  N.  J.  L.  150,  153;  Gulick 
v.  Loder,  13  N.  J.  L.  68,  72. 

Circumstantial  evidence  —  Instances. —  Berckmans  v.  Berckmans, 
16  N.  J.  Eq.  122,  17  N.  J.  Eq.  453;  Day  v.  Day,  4  N.  J.  Eq.  444; 
Adams  v.  Adams,  17  N.  J.  Eq.  324. 


8  A  DIGEST  OF  [Pact  I. 

Examples  of  irrelevant  testimony. —  Wiley  v.  Railroad  Co.,  44  N.  J. 
L.  247 ;  Fitzgerald  v.  Faunce,  46  N.  J.  L.  599 ;  Temperance  Hall  Assn. 
V.  GiZes,  33  N.  J.  L.  260;  Reed  v.  Pierson,  Pen.  681;  Bank  V.  Harm, 
3  Harr.  222. 

Antenuptial  incontinence  irrelevant  in  divorce.  Hedden  v.  Hedden, 
21  N.  J.  Eq.  61. 

Best  evidence. —  The  testimony  of  a  person  as  to  his  own  signature 
is  of  no  higher  character  as  evidence  than  the  testimony  of  another 
who  is  acquainted  with  his  handwriting.  Lefferts  v.  State,  49 
N.  J.  L.  26. 

Court  equally  divided. —  All  evidence  should  be  admitted  by  an 
affirmative  order  of  court,  so  that  if  the  court  are  equally  divided  oj> 
a  question  of  admitting  evidence  it  should  be  excluded.  Jackson  V. 
Miller,  25  N.  J.  L.  90;  Jessup  v.  Cook,  1  Hal.  434,  440;  Price  V. 
Tollman,  Coxe  447.     See  Kirby  v.  Coles,  3  Green,  441. 

Inadmissible  testimony. —  ^Yhere  one  puts  in  illegal  evidence  with- 
out objection  he  has  no  right  to  put  in  other  illegal  evidence  to 
explain  it.    Brand  v.  Longstreet,  4  N.  J.  L.  325. 

Admission  of  irrelevant  evidence  on  the  part  of  the  State  without 
objection  is  no  reason  for  admitting  similar  evidence  for  the  de- 
fendant.    Cook  v.  State,  24  N.  J.  L.  843. 

Maryland. 

Rebutting  evidence. —  Rebutting  evidence  is  that  which  shows  »that 
the  evidence  of  the  other  party  is  not  entitled  to  the  force  and  effect 
which  the  law  imputes  to  it  prima  facie.  Davis  V.  Hamblin,  51  Md. 
525. 

Meeting  irrelevant  evidence. —  The  fact  that  one  party  introduces 
incompetent  evidence  does  not  authorize  the  other  to  introduce  simi- 
lar evidence.  Gorsuch  v.  Rutledge,  70  Md.  272;  Walkup  v.  Pratt, 
5  H.  &  J.  56;  Railroad  Co.  v.  Woodruff,  4  Md.  255;  Mitchell  v.  Sell- 
man.  5  Md.  376. 

When  irrelevant  evidence  has  been  admitted  over  a  party's  ob- 
jection, he  is  entitled  to  introduce  evidence  to  explain  or  contradict 
it.     Lake  Roland  Ry.  Co.  v.  Frick,  86  Md.  273. 

Affirmative  and  negative  evidence.  Affirmative  evidence  of  a  fact 
is  entitled  to  more  weight  than  negative.  Riswick  v.  Goodhue,  50 
Md.  57. 

Best  evidence  rule. —  The  rule  requiring  the  best  evidence  refers  to 
quality  and  not  to  quantity,  but  does  not  exclude  a  weak  witness 


Chap.  I.J  THE  LAW  OF  EVIDENCE.  9 

merely  because  a  strong  one  might  have  been  produced.  A  boundary 
may  be  proved  by  one  who  saw  the  line  run  as  well  as  by  the  surveyor 
who  did  the  work.    Richardson  v.  MUburn,  17  Md.  67. 

Pertinent  evidence  is  admissible  even  though  it  is  weak  and  in- 
conclusive.    Fulton  v.  Maccracken,  18  Md.  528. 

Res  inter  alios. —  Statements  and  acts  of  third  parties  not  in  the 
presence  of  a  party  are  not  deemed  relevant  as  against  him.  Baker 
V.  Gunther,  53  Md.  373 ;  Insurance  Co.  v.  Carlin,  58  Md.  336 ;  Swartz 
v.  Chickering,  58  Md.  290;  Basford  v.  Parran,  8  Md.  360. 

The  statement  of  the  consideration  in  a  deed  is  not  admissible 
against  one  not  a  party  thereto  to  show  the  price  paid.  Lake  Roland 
Ry.  Co.  v.  Frick,  86  Md.  259. 

Assurance  of  counsel  as  to  relevancy. —  Evidence  that  seems  to  be 
irrelevant  will  be  admitted  on  the  assurance  of  counsel  that  other 
evidence  will  be  introduced  later  to  render  its  relevancy  clear;  if 
counsel  fails  to  do  so,  such  evidence  must  be  withdrawn  from  the 
jury-  Rosenstock  v.  Tormey,  32  Md.  169;  Chelton  v.  State,  45  Md. 
564;  Baker  v.  Swann,  32  Md.  355;  Beall  v.  McCulloh,  27  Md.  651; 
Bushman  v.  Morling,  30  Md.  384;  Crawford  v.  Beall,  21  Md.  208; 
Atwell  v.  Miller,  6  Md.  10. 

Credible  witness. —  A  "credible  witness,"  as  used  in  the  statute 
of  wills,  means  one  competent  to  testify  at  the  time  he  signs.  Estep 
V.  Morris,  38  Md.  424;  Higgins  v.  Carlton,  28  Md.  115. 

An  "issue"  denned. — Barth  v.  Rosenfeld,  36  Md.  617. 

Experiments  to  test  accuracy. —  Evidence  of  experiments  to  show 
whether  voices  might  be  heard  between  two  designated  places  is  ad- 
missible.    Gambrill  v.  Schooley,  95  Md.  260. 

Objecting  to  evidence. — An  objection  to  the  admission  of  evidence 
should  not  be  sustained  if  any  part  of  such  evidence  offered  is  rele- 
vant.    Scarlett  v.  Acad,  of  Music,  46  Md.  132. 

Evidence  offered  for  a  special  purpose. —  Evidence  need  not  be  in- 
troduced for  any  special  purpose,  and  is  then  admissible  if  relevant 
to  any  part  of  the  issue;  but  if  counsel  states  a  special  purpose,  and 
the  evidence  is  not  admissible  for  that  purpose,  it  will  be  excluded. 
Byers  v.  Horner,  47  Md.  23;  Conner  v.  Mt.  Vernon  Co.,  25  Md.  55; 
Nutwell  v.  Tongue,  22  Md.  419;  McTavish  v.  Carroll,  13  Md.  429; 
Pegg  v.  Warford,  7  Md.  582. 

Limiting  scope  of  evidence. —  Evidence  admitted  for  one  purpose 
only  cannot  be  used  by  the  party  for  other  purposes.  Emory  v. 
Otcings,  3  Md.  17S. 


10  A  DIGEST  OF  [Part  I. 

Contradicting  pleadings. —  Evidence  in  contradiction  of  the  allega- 
tions in  one's  own  pleadings  is  not  admissible.  O'Brien  v.  Fowler, 
67  Mil.  561;  Kribs  v.  Jones,  44  Md.  396;  Wright  v.  Gilbert,  51  Md. 
140;   Turner  v.  Maddox,  3  Gill,  190. 

Mental  condition,  etc. —  Direct  evidence  of  a  person  is  admissible 
as  to  his  motive,  belief,  or  intention.  Phelps  v.  Railroad  Co  ,  60 
Md.  536. 

Opinions  of  counsel. —  Opinions  of  counsel  are  not  evidence.  Dorsey 
v.  Hammond,  1  Har.  &  J.  190. 

Questions  by  court. —  Evidence  may  be  brought  out  on  motion  of 
the  court  itself.     Fisher  v.  Fisher,  95  Md.  314. 

Pennsylvania. 

Relevancy. —  Where  the  admissibility  of  evidence  depends  upon  the 
existence  of  a  fact,  the  evidence  will  be  received  if  there  has  been 
given  any  testimony  from  which  the  jury  may  infer  the  existence  of 
the  fact.    Blair  v.  Seaver,  26  Pa.  274. 

Evidence  rejected  for  one  purpose  may  be  admitted  for  another. 
Moore  v.  Smith,  14  S.  &  R.  388;  O'Neil  v.  Whitecar,  1  Phila.  440. 

Evidence  may  be  given  of  a  fact  that  is  badly  pleaded.  Hill  v. 
Hill,  32  Pa.  511. 

When  a  matter  has  been  averred  in  the  declaration  unnecessarily 
or  insufficiently,  evidence  may  be  given  to  support  it.  Hake  v.  Fink, 
9  Watts,  336;  Thompson  v.  Barkley,  27  Pa.  263;  Hobensack  v.  Hall- 
man,  17  Pa.  154;  Howell  v.  McCoy,  3  Rawle,  256;  Edgar  v.  Boies,  11 
S.  &  R.  445;  Sommer  v.  Wilt,  4  S.  &  R.  19. 

If  inadmissible  evidence  has  been  allowed  to  be  given  without  ob- 
jection, the  jury  may  consider  it.  McCullough  v.  Elder,  8  S.  &  R. 
181;  Weckerly  v.  Geyer,  11  S.  &  R.  35. 

The  commonwealth  is  subject  to  the  same  rules  of  evidence  as  a 
citizen.  Its  evidence  must  be  relevant,  material,  and  the  best  at- 
tainable.    Ash's  Estate,  202  Pa.  422. 

Material  evidence  is  admissible  even  though  unsupported  it  would 
be  insufficient.  Haughey  v.  Strickler,  2  W.  &  S.  411;  Com.  v.  Leeds, 
83  Pa.  453;  Brown  v.  Clark,  14  Pa.  469. 

Evidence  of  intention. —  One  may  give  testimony  as  to  what  hi9 
intention  was.     Cullmans  v.  Lindsay,  114  Pa.  166. 

Testimony  known  to  be  untrue. —  The  judge  and  jury  are  not  bound 
to  accept  testimony  which  they  themselves  know  to  be  untrue. 
Where,  on  a  motion  for  a  new  trial,  testimony  was  offered  to  show 


Chap.  I.]  THE  LAW  OF  EVIDENCE.  11 

that  a  juryman  had  fallen  asleep,  it  was  no  error  to  exclude  it  when 
the  judge  knew  the  facts  himself.     Com.  V.  Jongruss,  181  Pa.  172. 

Latitude  allowed. —  Great  latitude  is  allowed  in  admitting  circum- 
stantial evidence  on  the  question  of  fraud.  Stewart  v.  Fenner,  81 
Pa.  177;  Burkholder  v.  Plank,  69  Pa.  225;  Rees  v.  Jackson,  64  Pa. 
486. 

Mental  condition. —  A  wide  scope  allowed  in  admitting  evidence 
of  mental  capacity.     Rouch  v.  Zehring,  59  Pa.  74. 

Evidence  of  hereditary  taint  is  relevant.  Smith  v.  Kramer,  5 
Clark,  226. 

Evidence  in  rebuttal. —  When  one  party  has  introduced  incompe- 
tent evidence  it  may  be  rebutted  by  the  other.  Morris  v.  Travis,  7 
S.  &  R.  220. 

Presumptions. —  Presumption  of  fact  and  presumption  of  law  de- 
fined.    Com.  v.  Frew,  3  Pa.  Co.  Ct.  492. 

A  presumption  must  be  based  upon  facts  and  not  upon  another 
presumption.     Welsh  v.  Railroad  Co.,  181  Pa.  461. 

The  conclusion  or  probable  inference  drawn  in  favor  of  the  ex- 
istence of  one  fact  from  others  in  proof  is  a  legal  presumption. 
Tanner  v.  Hughes,  53  Pa.  289. 

Circumstantial  evidence. —  No  inference  can  be  drawn  from  cir- 
cumstantial evidence  unless  the  circumstances  be  themselves  proved. 
They  cannot  be  presumed.  Douglass  v.  Mitchell,  35  Pa.  440;  War- 
ren v.  Com.,  37  Pa.  45. 

Circumstantial  evidence  compared  as  to  weight  with  direct  evi- 
dence.    Com.  v.  Harman,  4  Pa.  269. 

Circumstantial  evidence  is  admissible  if  relevant.  Davenport  v. 
Wright,  51  Pa.  292. 

Circumstantial  evidence  to  establish  the  existence  of  a  document. 
Bright  v.  Allan,  203  Pa.  386. 

Positive  and  negative  evidence. —  As  to  their  relative  value,  see 
Hess  v.  Railroad  Co.,  181  Pa.  492. 

Positive  testimony  of  a  fact  is  entitled  to  greater  weight  than 
negative  evidence  against  it.  JJrias  v.  Pennsylvania  R.  Co.,  152  Pa. 
326 ;  Floyd  v.  Phila.  £  R.  R.  Co.,  162  Pa.  29. 

Best  evidence. —  The  best  evidence  in  the  power  of  the  party  must 
be  produced.  Hamilton  v.  Van  Swearingen,  Add.  48;  Bank  v.  White- 
hill,  16  S.  &  R.  89;  Bryant  v.  Stilwell,  24  Pa.  314. 

Corroborative  evidence. —  Evidence  is  not  admissible  to  corroborate 
unless  it  also  tends  to  prove  the  disputed  fact.  Wolle  v.  Brown,  4 
Wliart.  365. 


12  A  DIGEST  OF  [Part  I. 

Example  of  cumulative  testimony. —  Wiley  v.  McGrath,  194  Pa. 
498. 

Real  evidence. —  To  prove  malpractice,  an  injured  limb  was  ex- 
hibited to  the  jury.     Fowler  v.  Sergeant,  1  Grant,  355. 

Experiments. —  Proof  of  experiments  to  show  the  effect  of  powder 
on  clothing  is  admissible.  Com.  v.  Sullivan,  13  Phila.  410;  Sullivan 
v.  Com.,  93  Pa.  284. 

A  model  of  a  scaffold  may  be  used  for  illustration.  Geist  v.  Rapp, 
206  Pa.  411;  Hagan  v.  Carr,  198  Pa.  60G. 

A  handwriting  expert  may  illustrate  his  meaning  by  a  diagram, 
and  counsel  may  refer  to  such  diagram  in  argument,  though  such 
diagram  is  not  evidence  in  itself.     Hagan  v.  Carr,  198  Pa.  606. 

Last  paragraph, —  Rodgers  v,  Stophel,  32  Pa.  111. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  13 


CHAPTEK  II. 

OF  FACTS  IN  ISSUE  AND  RELEVANT  TO  TEE  ISSUE. 

Article  2.* 

facts  in  issue  and  facts  relevant  to  the  issue 
may  be  proved. 

Evidence  may  be  given  in  any  proceeding  of  any  fact  in 
issue, 

and  of  any  fact  relevant  to  any  fact  in  issue  unless  it  is 
hereinafter  declared  to  be  deemed  to  be  irrelevant, 

and  of  any  fact  hereinafter  declared  to  be  deemed  to  be 
relevant  to  the  issue,  whether  it  is  or  is  not  relevant  thereto. 

Provided  that  the  judge  may  exclude  evidence  of  facts 
which,  though  relevant  or  deemed  to  be  relevant  to  the 
issue,  appear  to  him  too  remote  to  be  material  under  all 
the  circumstances  of  the  case. 

Illustration. 

(a)  A  is  indicted  for  the  murder  of  B,  and  pleads  not  guilty. 

The  following  facts  may  be  in  issue: — The  fact  that  A  killed  B; 
the  fact  that  at  the  time  when  A  killed  B  he  was  prevented  by  dis- 
ease from  knowing  right  from  wrong;  the  fact  that  A  had  received 
from  B  such  provocation  as  would  reduce  A's  offence  to  manslaughter. 

The  fact  that  A  was  at  a  distant  place  at  the  time  of  the  murder 
would  be  relevant  to  the  issue;  the  fact  that  A  had  a  good  character 
would  be  deemed  to  be  relevant;  the  fact  that  C  on  his  deathbed  de- 
clared that  C  and  not  A  murdered  B  would  be  deemed  not  to  be 
relevant. 

•  See  Note  II. 


14  A  DIGEST  OF  [Pabt  I. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  49-55; 
McKelvey  on  Evidence,  p.  12G  et  seq.;  Thayer's  Preliminary  Treatise 
on  Evidence,  pp.  265,  266;  Trull  v.  True,  33  Me.  367. 

"  Unless  excluded  by  some  rule  or  principle  of  law,  all  that  is  logi- 
cally probative  is  admissible."  Thayer's  Preliminary  Treatise  on 
Evidence,  p.  265. 

"  No  precise  and  universal  test  of  relevancy  is  furnished  by  the  law. 
The  question  must  be  determined  in  each  case  according  to  the  teach- 
ings of  reason  and  judicial  experience.  Thayer's  Cases  on  Evidence, 
pp.  2,  3.  If  the  evidence  conduces  in  any  reasonable  degree  to 
establish  the  probability  or  improbability  of  the  fact  in  controversy, 
it  should  go  to  the  jury.  Ins.  Co.  v.  Weide,  11  Wall.  43S,  440."  Plumb 
v.  Curtiss,  66  Conn.  166;   Ward  v.  Young,  42  Ark.  542. 

All  relevant  facts  are  admissible  unless  it  is  affirmatively  shown 
that  they  are  excluded  by  some  rule  of  law. 

"  Evidence  is  admitted  not  because  it  is  shown  to  be  competent,  but 
because  it  is  not  shown  to  be  incompetent."  Plumb  v.  Curtis,  66  Conn. 
166. 

Testimony  which  tends  to  support  only  a  portion  of  the  plaintiff's 
case  is  not  thereby  made  irrelevant  or  incompetent.  Gardner  v.  Cren- 
shaio,  122  Mo.  79,  27  S.  W.  612;  Bartlett  v.  Evarts,  8  Conn.  527. 

The  admissibility  of  relevant  evidence  is  not  affected  by  the  fact 
that  it  was  obtained  illegally  or  improperly.  Trask  v.  People,  151 
111.  523.    As  by  a  decoy  letter.    Andrews  v.  U.  8.,  162  U.  S.  420. 

Facts  interwoven  with  relevant  facts  are  admissible.  St.  Clair 
v.  U.  8.,  154  U.  S.  134,  149. 

Remote  evidence. —  If  evidence  is  of  facts  too  remote  to  be  ma- 
terial, the  judge  may  exclude  it.     White  v.  Graves,  107  Mass.  325. 

Collateral  facts. —  Irrelevant  facts  are  sometimes  called  "  collateral 
facts."  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  52.  adopted  in 
Eaton  v.  Telegraph  Co..  6S  Me.  67 ;  Moore  v.  Richmond,  85  Va.  538. 

Must  be  relevant  or  deemed  to  be  relevant. —  Johnson  v.  Carley, 
53  How.  Pr.  326-  Whintringham  v.  Dibble.  66  N.  Y.  634;  Van  Buren 
v.  Wells.  19  Wend.  203:  Fuller  v.  Clark,  3  E.  T>.  Smith.  302;  Aber- 
hall  v.  Poach.  3  E.  D.  Smith.  345.  11    How.  Pr.  95. 

Evidence  is  relevant,  which  tends  to  establish  the  issue.  Tt  is  ad- 
missible if  not  excluded  by  some  rule  of  evidence.  Plainer  v.  Plat- 
tier.  78  N.  Y.  no. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  15 

It  is  error  to  rule  out  evidence  directly  tending  to  support  the 
issues.  .  Scholey  v.  Mumford,  64  X.  Y.  521;  Rumsey  v.  Cook,  9  Hun, 
129;  Hayes  v.  Ball,  72  N.  Y.  418.  Such  as  evidence  which  tends  to 
negative  the  defence.  Banks  v.  Carter,  7  Daly,  417.  Or  to  explain 
and  thus  defeat  a  prima  facie  case.  Richard  v.  Wellington,  60  N.  Y. 
308;  Wallis  v.  Randall,  10  Hun,  33,  81  N.  Y.  104. 

Evidence  cannot  be  excluded  on  account  of  any  defect  in  the  plead- 
ings, which  can  be  cured  by  amendment.  Lathrop  v.  Godfrey,  3  Hun, 
739,  0  S.  C.  90. 

Evidence  is  competent  if  it  tends  to  prove  the  issue.  K.,  P.  & 
B.  Co.  v.  Guthrie,  64  111.  App.  523;  Hough  v.  Cook,  09  111.  581; 
R.,  R.,  I.  &  St.  L.  R.  R.  Co.  v.  Rafferty,  73  111.  58;  Evans  v.  George, 
80  111.  51;   Stastney  v.  Marschall,  37  111.  App.   137,  140. 

Evidence  to  be  admissible  must  be  relevant.  Welch  v.  Zerger. 
29  111.  App.  349;  Law  v.  Greenwood,  30  111.  App.  180;  Grubcy  v. 
Nat.  Bank,  35  111.  App.  350;  Powell  v.  McCord,  121  111.  330, 
333;  Avery  v.  Moore,  133  111.  74.  77;  Warner  v.  Crandall,  05  111. 
195;  Johnson  v.  T'on  Kettler,  06  111.  63;  Gibson  v.  Troutman,  9 
Brad.  94;  Gulliher  v.  People,  82  111.  145;  Johnson  v.  People,  94 
111.  505;  Hollaicay  v.  Johnson,  23  111.  App.  331. 

Evidence  which  tends  to  support  some  of  the  issues  is  compe- 
tent. Carter  v.  Carter,  152  111.  434;  Hunter  v.  Harris,  29  111.  App. 
200,  207. 

Evidence  not  wholly  irrelevant  is  admissible.  Hunter  v.  Harris, 
29  111.  App.   200,  207. 

Evidence  admissible  for  one  purpose  may  be  admitted  for  that 
purpose.  Huthmacher  v.  Lowman,  66  111.  App.  448 ;  Marder  v. 
heavy,  35  111.  App.   420,  422. 

Evidence  competent  against  one  of  two  defendants  is  admissible. 
Consol.  Ice  M.  Co.  v.  Keifer,  134  111.  481,  494;  Crosby  v.  People, 
137  111.   325,  334. 

The  competency  of  evidence  is  not  affected  by  the  fact  that  it 
was  obtained  illegally.     Trask  v.  People,  151   111.  523. 

Preliminary  inquiries. —  Preliminary  inquiries,  although  as  to  mat- 
ters otherwise  irrelevant,  may  be  allowed.  Mapley  v.  Irwin,  16 
111.  App.  363. 

Preliminary  questions,  such  as  age,  residence,  and  occupation, 
are  admissible.     C.  &  A.  R.  R.  Co.  v.  Lammert,  12  Brad.  408. 

Explanatory  evidence. —  Evidence  necessary  to  explain  evidence 
already  in  the  case  is  admissible.  Overtoon  v.  C.  d-  E.  I.  R.  R. 
Co..  181  111.  323,  54  N.  E.  898,  reversing  80  111.  App.  515. 


16  A  DIGEST  OF  [Past  I. 

Too  remote. —  Proof  of  value  two  years  after  is  inadmissible. 
Horner  v.  Zimmerman,  45  111.   14. 

New  Jersey. 

Relevancy  defined. —  To  be  relevant,  evidence  must  be  such  as  will 
assist  in  the  determination  of  the  issue.  Marsh  v.  Machine  Co.,  57 
N.  J.  L.  36. 

Relevancy  for  any  one  purpose. —  Evidence  admissible  for  one  pur- 
pose cannot  be  excluded  because  not  admissible  for  other  purposes. 
Trenton  P.  It.  Co.  v.  Cooper,  60  N.  J.  L.  219. 

Irrelevant  testimony.—  Evidence  of  the  value  of  a  house  is  ir- 
relevant to  show  the  value  of  services  in  building  it.  Jersey  Co.  v. 
Davison,  29  N.  J.  L.  415. 

A  contract  which  has  been  declared  void  by  a  court  of  equity  is 
inadmissible  in  a  court  of  law.     Weart  v.  Hoagland,  2  Zab.  517. 

Meeting  irrelevant  evidence. —  One  may  not  introduce  irrelevant 
evidence  merely  because  the  other  party  has  done  so.  Cook  v.  State, 
4  Zab.  843. 

Penalties  for  refusal  to  answer.— Before  penalties  will  be  enforced 
against  a  witness  for  refusing  to  answer  questions,  their  materiality 
must  bo  established.     Ladenburg  v.  Railroad  Co.,  66  N.  J.  L.  187. 

Former  acquittal  of  crime. —  In  criminal  cases  a  verdict  of  ac- 
quittal may  be  given  in  evidence  on  a  plea  of  autrefois  acquit  even 
though  no  judgment  was  ever  entered  on  the  verdict.  West  v.  State, 
2  Zab.  213. 

Raising  collateral  issues. — ■  Evidence  which  tends  to  raise  many 
collateral  issues  excluded.     Railroad  Co.  v.  Doughty,  2  Zab.  495. 

Evidence  admissible  by  statute. —  Evidence  may  be  made  admis- 
sible by  statutes  which  would  otherwise  have  been  deemed  irrelevant. 
Woodbridge  v.  Allen,  43  N.  J.  L.  262. 

Matters  not  pleaded. —  Evidence  is  not  competent  if  it  relates  only 
to  matters  not  pleaded.  Vansciver  v.  Bryan,  13  N.  J.  Eq.  434; 
Marshman  v.  Conklin,  21  N.  J.  Eq.  546;  Evans  v.  Huffman,  5  N.  J. 
Eq.  354. 

Maryland. 

Irrelevant  evidence  inadmissible. —  Irrelevant  matters  not  receiv- 
able in  evidence.  Maslin  v.  Thomas,  8  Gill,  18;  Dorsey  v.  Whipps, 
8  Gill,  457 ;  Green  v.  Caulk,  16  Md.  556. 

When  a  question  seems  irrelevant,  and  no  promise  is  made  to  show 
its  relevancy  later  on,  it  must  be  excluded.  Stewart  v.  Spedden,  5 
Md.  433. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  17 

In  an  action  of  replevin,  evidence  to  show  that  the  defendant  had 
taken  the  benefit  of  the  insolvent  laws  is  irrelevant.  Basford  V. 
Mills,  6  Md.  385. 

In  slander,  evidence  of  a  breach  of  contract  or  of  a  distraint  of 
goods  or  of  a  suit  for  trespass  is  not  relevant.  Gambrill  v.  Schooley, 
95  Md.  260. 

Where  a  corporation  is  an  executor,  threats  made  by  an  officer 
thereof  against  the  contestants  are  irrelevant.  Berry  v.  Safe  Deposit 
Co.,  90  Md.  45. 

Collateral  facts  are  those  that  afford  no  reasonable  inference  of 
the  existence  of  the  fact  to  be  proved.     Lee  v.  Tinges,  7  Md.  215. 

Evidence  that  the  defendant  was  ignorant  of  the  law  he  violated 
is  irrelevant.     Grumbine  v.  State,  60  Md.  355. 

Another  contract. —  In  an  action  on  a  contract  for  work  done  it  is 
not  permitted  for  defendant  to  prove  that  the  plaintiff  had  another 
contract  with  a  third  person  covering  the  same  period.  Baker  v. 
Gunther,  53  Md.  373. 

Example  of  irrelevant  evidence. —  Donahue  v.  Shedrick,  46  Md.  226. 

Reason  for  excluding  irrelevant  evidence.— Irrelevant  evidence  is 
excluded  because  it  consumes  the  public  time,  distracts  the  minds 
of  the  jurors,  and  is  unfair  to  the  opposite  party  since  he  could  not 
have  foreseen  it  and  prepared  to  meet  it.  Bloomer  v.  State,  48  Md. 
521. 

Question  irrelevant  in  part. —  The  question,  "  Can  you  tell  how 
fast  a  car  is  coming  at  night,  or  are  you  different  from  other 
people?  "  is  objectionable  since  it  is  irrelevant  in  part.  United 
Railways  Co.  v.  Seymour,  92  Md.  425. 

Contradicting  irrelevant  testimony. —  If  irrelevant  evidence  has 
been  introduced  by  one  party  that  will  be  injurious  to  the  other,  he 
may  contradict  it.     Gorsuch  v.  Rutledge,  70  Md.  272. 

Irrelevant  evidence  cannot  be  introduced  merely  because  such  evi- 
dence was  introduced  by  the  opposite  party.  Railroad  Co.  v.  Wood- 
ruff, 4  Md.  242;  Bannon  v.  Warfield,  42  Md.  22;  Biggins  v.  Carlton, 
28  Md.  115;  Warner  v.  Hardy,  6  Md.  525;  Walkup  V.  Pratt,  5 
II.  &  J.  51. 

Immaterial  evidence  not  admissible. —  Wyman  v.  Rae,  11  Gill 
&  J.  416. 

Evidence  of  facts  too  remote. —  In  slander  the  details  of  a  dis- 
charge in  bankruptcy  thirty  years  before  are  too  remote  to  be 
deemed  relevant.     Gambrill  v.  Schooley,  95  Md.  260. 

2 


IS  A  DIGEST  OF  [Pabt  L 

Evidence  that  is  remote  and  collateral  to  the  issue  should  be 
excluded.     Davis  v.  Calvert,  5  G.  &  J.  209. 

Relevancy  defined. —  All  evidence  from  which  there  may  be  drawn 
a  fair  and  reasonable  inference  of  the  existence  of  the  fact  to  be 
tried  is  relevant.     Brooke  v.   Winters,  39  Md.  505. 

Weak  relevant  evidence. —  Evidence  if  relevant  is  not  to  be  ex- 
cluded on  the  ground  that  it  is  weak  and  inconclusive.  Richardson 
v.  Milburn,  17  Md.  67. 

Evidence  relating  to  the  issue  is  admissible,  even  though  insuffi- 
cient when  standing  alone.     Brooke  v.  Quytm,  13  Md.  379. 

Evidence  will  not  be  excluded  as  to  a  fact  upon  which  issue  has 
been  joined,  even  though  such  fact  does  not  constitute  a  legal  bar 
to  the  action.  Mitchell  v.  Williamson,  9  Gill,  72;  Shriner  v.  Lam- 
lorn,  12  Md.  170. 

Insanity. —  As  to  what  evidence  is  relevant  to  prove  insanity,  see 
Spencer  v.  State,  69  Md.  28. 

Forgery. —  On  question  of  forgery  of  a  bond  the  facts  that  the 
alleged  signer  is  illiterate,  that  the  subscribing  witnesses  lived  sixty 
miles  away  and  are  of  bad  reputation,  are  relevant.  Sides  v. 
Schncbhj,  3  Har.  &  McH.  243. 

Assurance  of  counsel  that  evidence  is  relevant. —  Evidence  seem- 
ingly irrelevant  may  be  admitted  on  assurance  of  counsel  that  his 
further  evidence  will  show  its  relevancy.  Davis  v.  Calvert,  5  G.  &  J. 
269. 

Relevancy  to  prove  fraud. —  On  questions  of  fraud,  the  door  is 
opened  wide  to  the  admission  of  testimony,  though  its  relevancy  be 
slight.     Davis  v.  Calvert,  5  G.  &  J.  269. 

Evidence  relevant  in  rebuttal. —  When  a  witness  has  testified  that 
he  recognized  a  person  at  a  certain  distance,  testimony  of  others 
with  equally  good  eyesight  is  relevant  to  show  that  they  could  not 
recognize  any  one  at  that  distance.    Richardson  v.  State,  90  Md.  109. 

Order  of  proof. —  A  party  may  introduce  his  evidence,  if  relevant, 
in  the  order  in  which  he  sees  fit,  and  he  cannot  be  required  to  state 
in  advance  what  his  succeeding  evidence  will  be.  Patterson  v. 
Crouthcr,  70  Md.  124:  Life  Ins.  Co.  v.  Dempsey,  72  Md.  288. 

When  one's  right  to  recover  depends  upon  proving  several  facts, 
evidence  as  to  any  one  of  them  is  admissible  irrespective  of  the 
order  in  which  it  is  offered.  Mills  v.  Bailey,  88  Md.  320;  Taylor  v. 
Stare,  79  Md.  130. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  19 

Pennsylvania. 

Relevancy. —  Evidence  (not  hearsay)  having  any  bearing  on  the 
question  in  issue  is  admissible.  Pratt  v.  Ricliards  Jewelry  Co.,  09 
Pa.  53;  Fehley  v.  Barr,  00  Pa.  19(3:  Trego  v.  Lewis,  58  Pa.  46;]; 
Stafford  v.  Henry,  51  Pa.  514;  Tarns  v.  Lewis,  42  Pa.  402;  Tams 
v.  Bullitt,  35  Pa.  SOS;  Rodgers  v.  Stophel,  32  Pa.  Ill:  ffiH  v.  £co^, 
12  Pa.  168;  Lightner  v.  Wike,  4  S.  &  R.  203;  Reigart  v.  Ellmaker, 
10  S.  &  R.  27. 

Irrelevant  evidence  not  admissible.  Tams  v.  Lewis,  42  Pa.  402; 
Bratton  v.  Mitchell,  3  Pa.  44;  Spence  v.  Spence,  4  Watts.  105;  Miller 
v.  Frazier,  3  Watts,  456;  /fe^er  v.  Lei&,  1  P.  &  W.  220;  Battel/  v. 
Bailey,  14  S.  &  R.  195;  Stewart  v.  Huntingdon  Bank,  11  S.  &  R. 
267;  Leeds  v.  Com.,  S3  Pa.  453. 

If  facts  are  not  relevant  to  the  issue  they  are  not  admissible, 
even  though  other  facts  might  be  inferred  from  them  which  would 
support  the  issue.  Weidler  v.  Bank,  11  S.  &  R.  134;  Kocher  v.  Bow- 
man, 10  Watts,   128. 

Party  offering  must  show  relevancy. —  The  party  offering  evidence 
must  show  its  relevancy.     Piper  v.  White,  56  Pa.  90. 

Latitude  in  fraud. —  Great  latitude  is  allowed  in  the  admission  of 
evidence  on  a  question  of  fraud.  Paul  v.  Kunz,  195  Pa.  207;  Snay- 
berger  v.  Fahl,  195  Pa.  336. 

Assurance  of  counsel  as  to  relevancy. —  Evidence  may  be  admitted 
in  the  discretion  of  the  judge  on  the  statement  of  counsel  that  its 
relevancy  will  later  appear.  No  exception  lies  to  the  exercise  of 
such  discretion.    Weidler  v.  Bank;  11  Serg.  &  R.  134. 

Instances. —  Testimony  in  contradiction  of  a  witness'  statements 
is  admissible  to  discredit  him,  even  though  such  statements  were  im- 
material.    Batdorff  v.  Bank,  61  Pa.  179. 

Any  evidence  which  tends  to  impeach  the  credibility  of  a  witness  | 
is  relevant.     Magellan  v.  Thompson,  9  W.  &  S.  54. 

To  establish  defense  of  insanity  the  prisoner's  mental  condition, 
before  and  after  the  act,  is  admissible.  Com.  v.  Gerade,  145  Pa. 
289. 

Circumstantial  evidence  rendering  the  fact  in  issue  more  or  less 
probable  is  relevant.    Johnson  v.  Com.,  115  Pa.  369. 

To  prove  a  forgery,  practice  copies  of  the  signature  made  by  the 
supposed  forger  are  relevant.  Pennsylvania  Co.  for  Insurance  v. 
Railroad  Co.,  153  Pa.  160. 

On  question  of  forgery  of  a  bill,  evidence  that  at  about  the  time 


20  A  DIGEST  OF  [Part  I. 

the  bill  is  dated  the  signer  tried  to  borrow  money  is  relevant. 
Stevenson  v.  Steward,  11  Pa.  307. 

Where  the  date  of  a  receipt  is  in  issue,  the  time  the  money  was 
actually  received  is  relevant.     Armstrong  v.  Burrows,  G  Watts,  26G. 

Conviction  for  manslaughter  irrelevant  in  ejectment.  Painter  v. 
Drum,  40  Pa.  467. 

Evidence  to  show  how  facts  might  have  existed  hypothetically  is 
not  admissible.     Hart  v.  Evans,  8  Pa.  13. 

On  cross-examination. —  Irrelevant  questions  are  permissible  in 
the  discretion  of  the  court  on  cross-examination  for  testing  the  ac- 
curacy of  the  witness.     Clark  v.  Church,  5  W.  &  S.  266. 

Last  paragraph. —  Nevling  v.  Com.,  98  Pa.  322. 

Article  3. 

relevancy  of  facts  forming  part  of  the  same 
transaction  as  the  facts  in  issue. 

A  transaction  is  a  group  of  facts  so  connected  together 
as  to  be  referred  to  by  a  single  legal  name,  as  a  crime,  a 
contract,  a  wrong  or  any  other  subject  of  inquiry  which 
may  be  in  issue. 

Every  fact  which  is  part  of  the  same  transaction  as  the 
facts  in  issue  is  deemed  to  be  relevant  to  the  facts  in  issue, 
although  it  may  not  be  actually  in  issue,  and  although  if  it 
were  not  part  of  the  same  transaction  it  might  be  excluded 
as  hearsay. 

Whether  any  particular  fact  is  or  is  not  part  of  the  same 
transaction  as  the  facts  in  issue  is  a  question  of  law  upon 
which  no  principle  has  been  stated  by  authority  and  on 
which  single  judges  have  given  different  decisions. 

When  a  question  as  to  the  ownership  of  land  depends  on 
the  application  to  it  of  a  particular  presumption  capable 
of  being  rebutted,  the  fact  that  it  does  not  apply  to  other 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  21 

neighbouring  pieces  of  land  similarly  situated  is  deemed  to 
be  relevant. 

Illustrations. 

(a)  The  question  was,  whether  A  murdered  B  by  shooting  him. 

The  fact  that  a  witness  in  the  room  with  B  when  he  was  shot,  saw 
a  man  with  a  gun  in  his  hand  pass  a  window  opening  into  the  room 
in  which  B  was  shot,  and  thereupon  exclaimed,  "  There's  butcher !  " 
(a  name  by  which  A  was  known),  was  allowed  to  be  proved  by  Lord 
Campbell,  L.  C.  J.i 

(6)  The  question  was,  whether  A  cut  B's  throat,  or  whether  B  cut 
it  herself. 

i  R.  v.  Fowkes,  Leicester  Spring  Assizes,  1856.  Ex  relatione 
O'Brien,  Serjt. 

In  the  report  of  this  case  in  the  Times  for  March  8,  1856,  the 
evidence  of  the  witnesses  on  this  point  is  thus  given:  — 

"  William  Fowkes:  My  father  got  up  [?  went  to]  the  window,  and 
opened  it  and  shoved  the  shutter  back.  He  waited  there  about  three 
minutes.  It  was  moonlight,  the  moon  about  the  full.  He  closed  the 
window  but  not  the  shutter.  My  father  was  returning  to  the  sofa 
when  I  heard  a  crash  at  the  window.  I  turned  to  look  and  hooted, 
'  There's  butcher.'  I  saw  his  face  at  the  window,  but  did  not  see  him 
plain.  He  was  standing  still  outside.  I  aren't  able  to  tell  who  it 
was,  not  certainly.  I  could  not  tell  his  size.  While  I  was  hooting 
the  gun  went  off.  I  hooted  very  loud.  He  was  close  to  the  shutter 
or  thereabouts.  It  was  only  open  about  eight  inches.  Lord  Camp- 
bell: Did  you  see  the  face  of  the  man?  Witness:  Yes,  it  was  moon- 
light at  the  time.  I  have  a  belief  that  it  was  the  butcher.  I  believe 
it  was.  I  now  believe  it  from  what  I  then  saw.  I  heard  the  gun  go 
off  when  he  went  away.  We  hoard  him  run  by  the  window  through 
the  garden  towards  the  park." 

Upon  cross-examination  the  witness  said  that  he  saw  the  face  when 
he  hooted  and  heard  the  report  at  the  same  moment.  The  report 
adds,  "  The  statement  of  this  witness  was  confirmed  by  Cooper,  the 
policeman  (who  was  in  the  room  at  the  time)  except  that  Cooper 
saw  nothing  when  William  Fowkes  hooted,  '  There's  butcher  at  the 
window!  '"  He  stated  he  had  not  time  to  look  before  the  £un  went 
off.     In  this  case  the  evidence  as  to  W.  Fowkes's  statement  could  not 


-22  A  DIGEST  OF  [Pabt  I. 

A  statement  made  by  B  when  running  out  of  the  room  in  which 
her  throat  was  cut  immediately  after  it  had  been  cut  was  not  allowed 
to  be  proved  by  Cockburn,  L.  C.  J.2 

(c)  The  question  was,  whether  A  was  guilty  of  the  manslaughter 
of  B  by  carelessly  driving  over  him. 

A  statement  made  by  B  as  to  the  cause  of  his  accident  as  soon  as 
he  was  picked  up  was  allowed  to  be  proved  by  Park,  J.,  Gurney,  B., 
and  Patteson,  J.,  though  it  was  not  a  dying  declaration  within 
article  26.3 

(d)  The  question  is,  whether  A  the  owner  of  one  side  of  a  river 
owns  the  entire  bed  of  it  or  only  half  the  bed  at  a  particular  spot. 
The  fact  that  he  owns  the  entire  bed  a  little  lower  down  than  the 
spot  in  question  is  deemed  to  be  relevant-4 

(e)  The  question  is,  whether  a  piece  of  land  by  the  roadside  be- 
longs  to  the  lord  of  the  manor  or  to  the  owner  of  the  adjacent  land. 

"The  fact  that  the  lord  of  the  manor  owned  other  parts  of  the  slip 
of  land  by  the  side  of  the  same  road  is  deemed  to  be  relevant .5 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  108;  Mc- 
Tvelvey  on  Evidence,  p.  277  et  seq.;  Com.  v.  Hackett,  2  Allen  (Mass.), 
130;  Hayncs  v.  Rutter,  24  Pick.  (Mass.)  242;  Com.  v.  McPike,  3 
■Cush.    (Mass.)    181. 

The  rule  of  the  text  is  included  under  the  rule  that  res  gestce  are 
admissible,  that  term  being  defined  as  "  the  circumstances,  facts  and 

be  admissible  on  the  ground  that  what  he  said  was  in  the  prisoner's 
presence,  as  the  window  was  shut  when  he  spoke.  It  is  also  obvious 
that  the  fact  that  he  said  at  the  time  "  There's  butcher  "  was  far 
more  likely  to  impress  the  jury  than  the  fact  that  he  was  at  the  trial 
uncertain  whether  the  person  he  saw  was  the  butcher,  though  he  was 
disposed  to  think  so. 

?R.  v.  Bedingfield,  Suffolk  Assizes,  1879,  14  Cox  C.  C.  341.  The 
propriety  of  this  decision  was  the  subject  of  two  pamphlets,  one  by 
W.  Pitt  Taylor,  who  denied,  the  other  by  the  Lord  Chief  Justice,  who 
maintained  it. 

3  R.  v  Foster,  1834,  6  C.  &  P.  325. 

'Jones  v.  Williams,  1837,  2  M.  &  W.  326. 

»Doe  v.  Kemp,  1831,  7  Bing.  332;  2  Bing.  N.  C.  102. 


€hap.  II.]  THE  LAW  OF  EVIDENCE.  23 

declarations  which  grow  out  of  the  main  fact,  are  contemporaneous 
with  it,  and  serve  to  illustrate  its  character."  Stirling  v.  Buckingham, 
46  Conn.  464,  adopted  in  Pinney  v.  Jones,  G4  Conn.  55,  and  Norwalk  v. 
Ireland,  G8  Conn.  14. 

A  transaction  is  not  ended  so  long  as  the  parties  to  it  remain  to- 
gether, and  anything,  according  to  the  usual  course  of  proceeding,  re- 
mains to  he  done.    Fiftcld  v.  Richardson,  34  Vt.  410. 

Declarations  or  acts  antecedent  to  the  transaction,  and  conse- 
quently forming  no  part  thereof,  are  inadmissible.  Louisville  &  N. 
R.  Co.  v.  Stewart,  56  Fed.  R.  SOS,  G  C.  C.  A.  147,  9  U.  S.  App.  564; 
Young  v.  Keller,  16  Mo.  App.  550. 

The  whole  of  a  transaction  is  admissible.  Ins.  Co.  v.  Moseley,  8 
Wall.  (U.  S.)  379,  405;  Vicksburg  &  Meridian  R.  R.  Co.  v.  O'Brien, 
119  U.  S.  99,  105;  Peabody  v.  Dewey,  153  111.  657;  Ward  v.  White, 
8G  Va.  212,  19  Am.  St.  Rep.  8S3;  People  v.  Vernon,  35  Cal.  49,  95 
Am.  Dec.  1;  Augusta  Factory  v.  Barnes,  72  Ga.  217,  53  Am.  Rep. 
83S. 

In  determining  the  meaning  of  a  deed,  another  deed,  executed  at  the 
same  time,  between  the  same  parties  and  relating  to  the  same  subject- 
matter,  is  admissible  on  the  theory  that  the  two  form  parts  of  one 
agreement.     Simonds  v.  Shields,  72  Conn.  146. 

In  an  action  against  a  steamboat  company,  for  personal  injuries, 
the  plaintiff  may  show  that  after  he  was  taken  from  the  water  the 
captain  treated  him  in  an  inhuman  manner.  "  It  was  competent  for 
the  plaintiff  to  prove  the  whole  transaction.*'  Hall  V.  Conn.  River 
Steamboat  Co.,  13  Conn.  325.     See  also  Thomas  v.  Beck,  39  Conn.  241. 

In  a  suit  against  a  municipal  corporation  to  recover  damages  for 
the  obstruction  of  a  way  by  digging,  it  may  be  proved  as  part  of  the 
res  gestee,  for  whom  those  doing  the  work  claimed  to  be  working. 
Wiley  v.  Portsmouth,  64  N.  H.  214,  9  Atl.  220. 

Narration  of  past  events. — A  mere  narration  of  past  events,  even 
though  made  soon  after  the  transaction,  is  not  admissible.  Knox  v. 
Wlirelock,  54  Vt.  150:  Tabor  v.  Hardin,  9  Ky.  Law  Rep.  491  ;  Travel- 
tr's  Ins.  Co.  v.  Sheppard,  S5  Ga.  751,  12  S.  E.  IS:  Hooper  v.  Carey, 
86  la.  404.  53  X.  W.  415:  Rowland  v.  Phila..  W.  d-  B.  R.  R.  Co..  G3 
Conn.  419;  Hayncs  v.  Rutter,  24  Pick.  (Mass.)  242;  Lane  v.  Bryant, 
9  Gray  (Mass.),  245;  Eastman  v.  B.  d  M.  R.  R.  Co.,  165  Mass. 
342. 

Authorities  for  first  proposition  of  text. —  Waldele  v.  A.  5*.  C. 
R.  R.  Co.,  95  N.  Y.  274;  People  v.  Davis,  56  N.  Y.  91;  Eighmy  v. 


24  A  DIGEST  OF,  [Part  I. 

People,  79  N.  Y.  546;  Finkelstein  v.  Barnett,  17  Misc.  564,  40  N.  Y. 
Supp.  694,  affirming  16  Misc.  Rep.  488;  Boardman  v.  Lake  Shore  & 
Michigan  Southern  Railroad  Co.,  84  N.  Y.  157 ;  People  v.  Zounek, 
49  N.  Y.  St.  R.  642,  10  N.  Y.  Crim.  251;  Cassidy  v.  Uhlmann,  66 
N.  Y.  Supp.  670,  54  App.  Div.  205. 

The  declarations  to  be  admissible  as  part  of  the  res  gestce  must 
accompany  the  act  and  so  harmonize  with  it  as  to  be  obviously  part 
of  the  same  transaction.  Moore  v.  Meach-am,  10  N.  Y.  207,  210; 
Waldele  v.  N.  Y.  C.  cG  H.  R.  R.  R.  Co.,  95  N.  Y.  274;  Eallahan  v. 
New  York,  Lake  Erie  Railroad  Co.,  102  N.  Y.  194. 

Patient's  statement  as  to  present  condition. —  In  a  trial  for  mur- 
der by  poisoning,  a  physician,  who  was  consulted  by  the  deceased 
about  thirty  days  before  her  death,  may  testify  as  to  what  she  told 
him  about  her  condition  at  the  time,  but  not  as  to  what  she  said 
about  her  previous  symptoms.     People  v.  Foglesong,  116  Mich.  556. 

Declaration  and  acts  part  of  the  res  gestse. —  In  a  case  of  trespass- 
to  the  person  based  upon  the  forcible  removal  of  the  plaintiff 
from  property  occupied  by  herself  and  husband  as  a  homestead, 
a  writ  of  assistance  directed  against  the  husband,  under  which  the 
defendant  acted,  is  admissible  in  evidence  not  as  a  justification, 
but  as  a  part  of  the  res  gestae,  and  as  bearing  upon  the  question 
of  damages.     Haviland  v.  Chase,   116  Mich.  214. 

Receipts  or  stubs  thereof  may  be  admissible  in  connection  with 
proof  of  the  delivery  of  wheat  as  part  of  the  res  gestw.  Frcese  v. 
Arnold,  99   Mich.    13. 

In  a  suit  against  a  street  railway  company  for  injuries  re- 
ceived in  a  collision  of  an  open  car  in  the  front  of  which  the  plain- 
tiff was  riding,  with  the  car  ahead  of  it,  evidence  as  to  what  was 
done  by  the  people  on  the  rear  end  of  the  forward  car  when  they 
Baw  the  danger  is  admissible  as  part  of  the  res  gestae  on  the  ques- 
tion of  the  plaintiff's  contributory  negligence  in  jumping  from 
the  car.     Eolman  v.  Union  Street  R.  Co.,  114  Mich.  208. 

In  an  action  for  slander,  evidence  of  an  altercation  so  connected 
with  the  utterance  of  the  alleged  slanderous  words  as  to  form  a 
part  of  the  res  gestae  is  admissible  as  bearing  upon  the  question 
of  malice.     Provost  v.  Brueck,   110   Mich.   136. 

In  an  action  for  larceny  the  State  may  properly  show  that  the 
respondent  had  his  newspaper  in  one  hand  and  the  other  was 
among  the  ladies'  dresses  feeling  of  their  pockets,  and  that  the 
witness    called    the    attention    of    the    officers    to    these    movements. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  25 

causing  the  officers  to  watch  the  respondent.  People  v.  Machen,  101 
Mich.  400. 

In  a  suit  for  goods  sold,  the  defendant  defends  upon  the  ground 
that  a  greater  quantity  than  the  amount  agreed  upon  was  fraudu- 
lently put  in  the  written  order  of  the  defendant,  and  evidence  of 
the  conversation  and  of  the  circumstances  surrounding  the  trans- 
action is  admissible  to  prove  the  fraud.  Shrimpton  d-  Sons  v. 
Rosenbaum,   106  Mich.   68. 

It  is  competent  to  prove,  for  purposes  of  comparison,  the  weight 
and  quality  of  wool  shown  to  a  witness  by  the  defendant  after  the 
theft,  and  alleged  to  have  been  taken  from  his  own  sheep,  such 
wool  having  been  stored  in  the  defendant's  house,  and  where  the 
stolen  wool  was  afterwards  proved  to  have  been  taken.  People  v. 
Pitcher,  15  Mich.  397. 

In  an  action  for  a  personal  injury,  it  is  competent  to  show  the 
entire  surroundings  of  the  place  where  the  injury  occurred.  Le 
Beau  v.  Telephone,  etc.,  Co.,   109  Mich.  302. 

A  defendant  sued  for  assault  and  battery  may  show  how  he  was 
dressed  at  the  time.     Kuney  v.  Butcher,  56  Mich.  308. 

It  is  error  to  exclude  plaintiff's  testimony,  in  an  indecent  as- 
sault upon  woman,  that  the  defendant  approached  her  with  un- 
chaste language,  and  had  solicited  sexual  indulgence  before  the 
act  was  committed.     Haicich  v.  Elsey,  47   Mich.    10. 

Habits. — When  the  plaintiff  in  an  action  for  personal  injuries 
makes  a  claim  for  damages  on  account  of  probable  earnings  subse- 
quent to  the  injury  and  it  appears  he  was  out  of  employment  at 
the  time  he  was  hurt,  evidence  that  for  two  or  three  years  prior 
to  the  injury  he  had  been  in  the  habit  of  getting  intoxicated,  and 
that  he  had  been  proprietor  of  a  hotel  of  bad  reputation,  is  admis- 
sible and  proper  as  bearing  upon  his  probability  of  securing  em- 
ployment, and  the  character  and  duration  of  the  same.  Kingston 
v.  Ft.  Wayne  &  E.  R.  Co.,  112  Mich.  40. 

New  Jersey. 

Res  gestse  denned  and  discussed. —  Hunter  v.  State,  40  N.  J.  L. 
495,  536. 

Declarations  are  admissible  as  part  of  res  gestve  only  when  con- 
comitant with  the  fact  in  issue  and  connected  with  it.  Blackman  v. 
Railroad  Co.,  68  N.  J.  L.  1. 


26  A  DIGEST  OF  [Part  i. 

Contemporaneous  statements. —  Contemporaneous  statements  and 
writings  characterizing  and  connected  with  acts  which  are  in  evi- 
dence are  admissible.  Luse  v.  Jones,  39  Is.  J.  L.  707;  Frome  v.  Den- 
nis, 45  N".  J.  L.  515. 

Acts  and  statements  at  or  near  the  time  of  the  transaction  in 
question  are  admissible  if  caused  by  such  transaction.  Hunter  v. 
State,  40  jST.  J.  L.  495. 

A  paper  writing  not  signed  held  admissible  as  part  of  the  res 
gestce  to  prove  terms  of  a  contract.  Freeman  v.  Bartlett,  47  N.  J.  L. 
33. 

Declarations  of  murdered  man. —  In  trial  for  homicide  the  imme- 
diate declaration  of  the  deceased  as  to  the  cause  of  his  death  re- 
ceived as  part  of  the  res  gestae.     Donnelly  v.  State,  26  N.  J.  L.  601. 

Declarations  of  the  accused. —  Declarations  of  an  accused  made  at 
the  time  of  the  offense  or  immediately  before  or  after  it  may  be 
admitted.    State  v.  Powell,  2  Hal.  244. 

Varying  written  contract. —  Statements  which  are  a  part  of  the 
res  gestos  are  not  admissible  to  vary  a  written  contract.  Uhler  v. 
Browning,  28  N.  .J.  L.  82. 

Words  of  bystanders. —  In  case  of  affray,  acts  and  words  of  by- 
standers at  the  time  are  part  of  the  res  gestw  and  admissible.  Cost- 
lier v.  Sliker,  33  N.  J.  L.  95,  507. 

Instances. —  Trespass.  Ogden  v.  Gibbons,  2  South.  518,  536.  Af- 
fray. Castner  v.  Sliker,  33  N.  J.  L.  95,  507.  Sale  and  delivery  of  a 
horse.  Guild  v.  Aller,  2  Harr.  310.  Intention  in  establishing  a 
residence  or  in  removing.  Likens  v.  Clark,  26  X.  J.  L.  207.  Doings 
and  sayings  of  an  agent.     Allen  v.  Bunting,  3  Harr.  299. 

Loaded  shells  found  in  the  same  room  in  which  a  murder  was 
committed  admissible  as  part  of  the  res  gestas.  State  v.  Hill,  65 
X.  J.  L.  627. 

Conduct. —  Evidence  of  conduct  to  show  mental  condition  as  part 
of  the  res  gestae.    Schlemmer  v.  State,  51  X.  J.  L.  23. 

Instances  where  the  statements  were  held  not  to  be  a  part  of  the 
samo  transaction:  Ferguson  v.  Reeve,  1  Harr.  193;  Snover  v.  Blair, 
25  X.  J.  L.  94. 

Narrative  of  past  events. —  In  case  of  homicide,  a  narrative  of  the 
affair  by  the  deceased,  given  a  few  minutes  after  the  defendant  had 
left,  is  not  part  of  the  res  gestae.    Estell  v.  State,  51  N.  J.  L.  182. 

Accidents. —  Declarations  of  plaintiff  in  action  for  negligence,  made 
some  time  after  the  accident  but  while  still  lying  where  injured  and 
suffering  acutely,  admitted.  D.,  L.  &  W.  Ry.  Co.  v.  Ashley,  67  Fed. 
209. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  27 

Words  spoken  by  driver  to  the  horse  in  a  runaway  admissible  as 
part  of  the  res  gestae.     Trenton  P.  R.  Co.  v.  Cooper,  60  N".  J.  L.  219. 

Maryland. 

Time  declarations  were  made. —  Declarations  of  a  sheriff  offered  as 
res  gestce  to  affect  a  sale  by  him  must  have  been  made  at  the  time 
of  the  sale.     Miles  v.  Knott,  12  G.  &  J.  442. 

The  circumstance  to  be  proved  may  be  part  of  one  transaction 
even  though  it  did  not  occur  at  the  precise  time  when  the  principal 
fact  occurred.     Handy  v.  Johnson,  5  Md.  450. 

Declarations  of  a  party  after  signing  a  bond  that  he  signed  it 
with  the  understanding  that  there  was  to  be  a  cosurety  are  not 
admissible  as  res  gestce.     Miller  v.  State,  8  Gill,  141. 

Statements  made  by  the  accused  a  few  minutes  after  a  murder, 
when  he  had  had  opportunity  for  reflection,  are  not  part  of  the  res 
gestce.     Wright  v.  State,  88  Md.  705. 

Statements  by  a  patient  to  her  physician  which  were  mere  narra- 
tive of  what  occurred  before  he  arrived  are  not  admissible.  Hays  v. 
State,  40  Md.  633. 

Declarations  of  agents. —  Declarations  by  an  agent  made  while 
transacting  the  principal's  business  and  in  connection  therewith  are 
admissible  against  the  principal  as  part  of  the  res  gestce.  Bradford 
v.  Williams,  2  Md.  Ch.  1;  Thomas  v.  Sternheimer,  29  Md.  268; 
Franklin  Bank  v.  Navigation  Co.,  11  G.  &  J.  28;  Union  Banking  Co. 
v.  Cil tings,  45  Md.  181. 

Letters  as  part  of  the  res  gestae. —  GuAther  v.  Clarke,  67  Md.  18; 
Roberts  v.  Mattress  Co.,  46  Md.  374. 

Res  gestae  in  assault  and  battery. —  Byers  v.  Horner,  47  Md.  23. 

Other  crimes. —  Proof  of  other  crimes  forming  part  of  the  same 
transaction  is  admissible.     Lamb  v.  State,  66  Md.  285. 

Reason  for  acting. —  On  trial  for  the  abduction  of  children,  the 
declarations  of  the  mother  at  the  time  of  leaving  with  the  defendant 
that  she  was  leaving  voluntarily  and  was  taking  the  children  with 
her  are  admissible.     Robinson  v.  State,  57  Md.  14. 

Fraud. —  Statements  of  a  grantor,  at  the  time  of  executing  the 
deed,  that  its  object  is  to  defraud  creditors,  are  admissible  as  res 
gestce.  McDowell  v.  Goldsmith,  2  Md.  Ch.  370;  Cooke  v.  Cooke,  29 
Md.  538;   Groff  v.  Rohrer,  35  Md.  327. 

In  a  suit  to  vacate  a  deed  for  fraud,  the  declarations  of  the  grantor 
to  the  conveyancer  are  admissible.     Sanborn  v.  Lang,  41  Md.  107. 


28  A  DIGEST  OF  [Part  I. 

Accidents. —  Declarations  of  the  driver  of  a  car  half  an  hour  after 
the  accident  are  mere  narrative  and  not  admissible.  Dietrich  v. 
Halls  Springs  Ry.  Co.,  58  Md.  347. 

Statements  made  at  a  distance  of  several  blocks  from  the  scene 
of  the  accident  are  not  res  gestae.     Baltimore  v.  Lobe,  90  Md.  310. 

When  statements  of  parties  concerned  are  part  of  the  res  gestae. 
B.  d  0.  It.  R.  Co.  v.  Allison,  62  Md.  479;  B.  &  0.  R.  R.  Co.  v.  Good, 
75  Md.  526. 

Pennsylvania. 

Res  gestae  defined. —  Coll  v.  Transit  Co.,  180  Pa.  618;  Van  Eman 
v.  Fidelity  &  Casualty  Co.,  201  Pa.  537. 

What  are  res  gestae  in  homicide.     O'Mara  v.  Com.,  75  Pa.  424. 

Declarations  of  deceased  admitted  as  res  gestw  in  trial  for  murder. 
Com.  v.  Van  Horn,  188  Pa.  143. 

Statements  made  at  the  time  of  the  act  are  not  res  gestae  unless 
they  have  a  necessary  relation  to  the  transaction.  In  re  Midler's 
Estate,  159  Pa.  590. 

Bystanders. —  In  case  of  affray,  what  was  said  or  done  by  by- 
standers at  the  time  is  admissible  as  part  of  the  res  gestae.  Walter 
v.  Gernant,  13  Pa.  515. 

Time  of  declarations. —  Declarations  are  not  part  of  res  gestae  unless 
contemporaneous  with  the  act  done.  Kidder  v.  Lovell,  14  Pa.  214; 
Banks  v.  Clegg,  14  Pa.  390;  Grim  v.  Bonnell,  78  Pa.  152;  Smith  v. 
Emerson,  43  Pa.  456;  Stauffer  v.  Young,  39  Pa.  455. 

Length  of  time  after  the  event  as  affecting  admissibility.  Hester 
v.  Com.,  85  Pa.  139. 

Declarations  made  half  an  hour  after  an  accident  not  part  of  the 
res  gestae.     Briggs  v.  Coal  Co.,  206  Pa.  564. 

No  fixed  measure  of  time  or  distance  from  the  main  occurrence 
can  be  established.  Each  case  depends  upon  its  own  circumstances. 
Keefer  v.  Insurance  Co.,  201  Pa.  448. 

Declarations  of  agents  of  a  railroad  company  made  after  an  acci- 
dent not  admitted  as  res  gestae.     Erie  R.  Co.  v.  Smith,  125  Pa.  259. 

Statements  may  be  part  of  the  res  gestae  though  made  before  the 
act.    Rinesmith  v.  Railway  Co.,  90  Pa.  262. 

Illustrations. —  Statements  made  by  one  injured  alighting  from  a 
train  while  he  was  still  lying  on  the  platform  where  he  fell.  Rail- 
road  Co.  v.  Lyons.  129  Pa.  113. 

Declarations  of  workmen  during  a  fire  that  it  was  caused  by  their 
negligence.     Shafer  v.  Lacock,  168  Pa.  497. 


Chap.  II. ]  THE  LAW  OF  EVIDENCE.  29 

Declarations  of  an  engineer,  by  whose  negligence  one  was  injured, 
made  at  the  time  of  the  injury.  Hanover  Ii.  Co.  v.  Coyle,  55  Pa. 
396.     See  also  Mullan  v.  Steamship  Co.,  78  Pa.  25. 

Statements  by  one  killed  by  an  explosion  made  while  covered  with 
the  lire.    Elkins  v.  McKean,  79  Pa.  493. 

Declarations  of  an  injured  child  not  admitted  because  too  long 
after  the  event.     Bradford  v.  Downs,  126  Pa.  622. 

Declarations  while  wounds  were  being  dressed  after  the  crime  held 
to  be  res  gestae.     Com.  v.  Werntz,  161  Pa.  591. 

In  action  for  wife's  services,  her  declarations  during  the  service 
as  to  the  terms  thereof  are  admissible.  Hackman  v.  Flory,  16  Pa. 
196. 

Instructions  to  an  agent  to  deliver  a  message  are  part  of  the  res 
gestcB  if  the  message  was  delivered.     Featherman  v.  Miller,  45  Pa.  96. 

To  show  source  of  title,  the  correspondence  with  the  business  agent 
by  whom  the  property  was  purchased  is  part  of  the  res  gestce.  Han- 
nis  v.  Hazlett,  54  Pa.  133. 

Action  for  deceit  in  a  horse  trade  —  all  the  circumstances  of  the 
transaction  are  admissible.     McLene  v.  Fullerton,  4  Yeates,  522. 

A  record  in  a  suit  to  which  the  defendant  was  not  a  party,  as  part 
of  the  res  gestae.     Patterson  v.  Anderson,  40  Pa.  359. 

Declarations  of  an  agent  at  time  of  paying  money  as  to  the  person 
for  whom  it  is  paid.     Levering  v.  Rittenhouse,  4  Whart.  130. 

Article  4.* 

acts  of  conspirators. 

When  two  or  more  persons  conspire  together  to  commit 
any  offence  or  actionable  wrong,  everything  said,  done,  or 
written  by  any  one  of  them  in  the  execution  or  furtherance 
of  their  common  purpose,  is  deemed  to  be  so  said,  done, 
or  written  by  every  one,  and  is  deemed  to  be  a  relevant  fact 
as  against  each  of  them ;  but  statements  made  by  individ- 
ual conspirators  as  to  measures  taken  in  the  execution  or 

*  See  Note  III. 


30  A  DIGEST  OF  [Part  I. 

furtherance  of  any  such  common  purpose  are  not  deemed 
to  be  relevant  as  such  as  against  any  conspirators,  except 
those  by  whom  or  in  whose  presence  such  statements  are 
made.  Evidence  of  acts  or  statements  deemed  to  be  rele- 
vant under  this  article  may  not  be  given  until  the  judge  is 
satisfied  that,  apart  from  them,  there  are  prima  facie 
grounds  for  believing  in  the  existence  of  the  conspiracy  to 
which  they  relate. 

Illustrations. 

(a)  The  question  is,  whether  A  and  B  conspired  together  to  cause 
certain  imported  goods  to  be  passed  through  the  custom-house  on 
payment  of  too  small  an  amount  of  duty. 

The  fact  that  A  made  in  a  book  a  false  entry,  necessary  to  be  made 
in  that  book  in  order  to  carry  out  the  fraud,  is  deemed  to  be  a  rele- 
vant fact  as  against  B. 

The  fact  that  A  made  an  entry  on  the  counterfoil  of  his  cheque- 
book showing  that  he  had  shared  the  proceeds  of  the  fraud  with  B, 
is  deemed  not  to  be  a  relevant  fact  as  against  B.6 

(6)  The  question  is,  whether  A  committed  high  treason  by  imagin- 
ing the  king's  death;  the  overt  act  charged  is  that  he  presided  over 
an  organised  political  agitation  calculated  to  produce  a  rebellion,  and 
directed  by  a  central  committee  through  local  committees. 

The  facts  that  meetings  were  held,  speeches  delivered,  and  papers 
circulated  in  different  parts  of  the  country,  in  a  manner  likely  to 
produce  rebellion  by  and  by  the  direction  of  persons  shown  to  have 
acted  in  concert  with  A,  are  deemed  to  be  relevant  facts  as  against  A, 
though  he  was  not  present  at  those  transactions,  and  took  no  part  in 
them  personally. 

An  account  given  by  one  of  the  conspirators  in  a  letter  to  a  friend, 
of  his  own  proceedings  in  the  matter,  not  intended  to  further  the 
common  object,  and  not  brought  to  A's  notice,  is  deemed  not  to  be 
relevant  as  against  AJ 

«J2.  v.  Blake,  1844,  6  Q.  B.  126. 
1 R.  r.  Hardy,  1794,  24  S.  T.  passim,  but  see  particularly  451-3. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  31 

AMERICAN   NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed. ),  sec.  Ill;  Mc- 
Kelvey  on  Evidence,  p.  108;  Logan  v.  U.  8.,  144  U.  S.  263;  Brown 
v.  U.  8.,  150  U.  S.  93;  Walls  v.  State,  125  Ind.  400;  Com.  v.  Tivnon, 
8  Gray  (Mass.),  375,  69  Am.  Dec.  248;  Com.  v.  Scott,  123  Mass.  235, 
25  Am.  Rep.  81;  Com.  v.  Smith,  151  Mass.  491;  Com.  v.  Crownin- 
shield,  10  Pick.  (Mass.)  497;  Com.  v.  Brown,  14  Gray  (Mass.),  419; 
Com.  v.  Waterman,  122  Mass.  43. 

Authorities  on  the  first  paragraph  of  the  text. —  State  v.  Soper,  16 
Me.  293,  33  Am.  Dec.  665;  Aldrich  v.  Warren,  16  Me.  465;  Lee  v. 
Lamprey,  43  N.  H.  13;  Jacobs  v.  Shorey,  48  N.  H.  100;  9T  Am.  Dec. 
586;  Jeune  v.  Joslyn,  41  Vt.  478;  Coioles  v.  Coe,  21  Conn.  235;  State 
v.  Glidden,  55  Conn.  78,  79;  Knower  v.  Cadden  Clothing  Co.,  57 
Conn.  222;  &*a*e  v.  Thompson,  69  Conn.  720;  Stafe  v.  Shields,  45 
Conn.  263. 

The  evidence  described  in  this  article  comes  in  as  part  of  the  res 
gestae.     State  v.  Soper,  16  Me.  293,  33  Am.  Dec.  665. 

Subsequent  statements  as  to  measures. —  The  rule  of  the  text  as 
to  statements  made  subsequently  by  individual  conspirators,  as  to 
measures  taken,  is  supported  by  State  v.  Larkin,  49  N.  H.  39;  Com. 
v.  Ingraham,  7  Gray  (Mass.),  46;  Moore  v.  Shields,  121  Ind.  267; 
Samples  v.  State,  121  111.  547. 

Acts  done  after  the  purpose  of  the  conspiracy  has  been  accom- 
plished may  be  admissible.  Com.  v.  Scott,  123  Mass.  235,  25  Am 
Rep.  81. 

Civil  and  criminal  cases. —  The  rule  of  this  article  applies  to  both 
civil  and  criminal  cases.  Knower  v.  Cadden  Clothing  Co.,  57  Conn. 
222;  Lowe  v.  Dalrymple,  117  Pa.  St.  564;  Beeler  v.  Webb,  113  111. 
436;  People  v.  Parker,  67  Mich.  222;  Goins  v.  State,  46  Ohio  St. 
457. 

Common  purpose. —  The  things  must  have  been  said,  done  or 
written  in  the  execution  or  furtherance  of  the  common  purpose. 
Knower  v.  Cadden  Clothing  Co.,  57  Conn.  222;  State  v.  McGee,  81 
la.  17. 

The  time  when  any  one  became  a  conspirator  is  immaterial ;  he  is 
thereafter  deemed  a  party-conspirator  to  all  acts  done  by  any  con- 
spirator in  furtherance  of  the  common  purpose.  U.  S.  v.  Johnson, 
26  Fed.  Rep.  682;  Bonner  v.  State,  107  Ala.  97. 


32  A  DIGEST  OF  [Part  I. 

Conversations  between  A  and  B,  during  the  pendency  of  the  crim- 
inal enterprise,  although  after  the  doing  of  the  act  which  the  parties 
conspired  to  commit,  is  admissible  against  C,  the  other  conspirator, 
in  a  trial  for  conspiracy.  Com.  v.  Smith,  151  Mass.  491.  See  also 
Com.  v.  Croicninshield,  10  Pick.  (Mass.)  497;  Com.  v.  Brown,  14 
Gray  (Mass.),  419;  Com.  v.  \v  aterman,  122  Mass.  43. 

Preliminary  proof. —  The  rule  of  the  text  as  to  preliminary  proof 
of  the  conspiracy  is  supported  by  Knoicer  v.  Cadden  Clothing  Co.,  57 
Conn.  222. 

As  to  last  statement  of  text,  see  Nudd  v.  Barrows,  91  U.  S.  426; 
Spies  v.  People,  122  111.  1,  3  Am.  St.  Rep.  320;  Logan  v.  U.  S.,  144 
U.  S.  263,  309;  Am.  Fur  Co.  v.  U.  S.,  2  Pet.  358,  365;  Lincoln  v. 
ClapZin,  7  Wall.  132,  139;  Lent  v.  Shear,  55  N.  E.  2,  160  N.  Y.  462. 
Judgment  (Sup.  1897),  46  N.  Y.  Supp.  1095,  reversed.  Ormsby  v. 
People,  53  N.  Y.  472. 

The  existence  of  the  common  purpose  is  primarily  to  be  passed 
upon  by  the  court,  for  the  purpose  of  deciding  on  the  admissibility 
of  the  evidence,  but  is  ultimately  for  the  jury.  Com.  v.  Broivn,  14 
Gray   (Mass.),  419;  State  v.  Thompson,  69  Conn.  729. 

The  court  must  be  satisfied  that  there  is  sufficient  evidence  to  war- 
rant the  jury  in  finding  a  combination.  Coicles  v.  Coe,  21  Conn.  234; 
Knower  v.  Cadden  Clothing  Co.,  57  Conn.  223 ;  State  v.  Thompson,  69 
Conn.  720. 

Reason  of  the  rule. —  The  evidence  comes  in  as  part  of  the  res 
gestce.  Deicey  v.  Moyer,  12.  N.  Y.  70;  Garnsey  v.  Rhodes,  138  N.  Y. 
461. 

Statements  by  conspirators. —  People  v.  McKane,  143  N.  Y.  455. 

New  Jersey. 

Conspiracy  denned. —  Johnson  v.  State,  26  N.  J.  L.  321. 

General  authority.—  After  a  combination  to  commit  a  fraud  has 
been  proved,  statements  made  by  one  are  admissible  against  the 
others  though  not  present.     Patton  v.  Freeman,  Coxe,  113. 

If  one  joins  with  other  conspirators  after  they  have  partly  con- 
summated their  plans,  he  adopts  their  prior  acts  and  declarations. 
Stewart  v.  Johnson,  3  Harr.  87. 

A  paper  written  by  one  conspirator  and  signed  only  by  the  others 
is  admissible.     State  v.  Preston,  1   N.  J.  L.  J.  117. 

Counterfeiters. —  Where  there  is  concert  among  counterfeiters,  the 
act  of  one  in  carrying  out  their  design  is  evidence  against  the  others, 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  33 

and  possession  of  counterfeit  money  by  one  is  the  possession  of  the 
others.    State  v.  TomUn,  29  X.  J.  L.  13,  24. 

Actions  to  set  aside  conveyances  to  defraud  creditors. —  Stewart 
v.  Johnson,  18  N.  J.  L.  87. 

Declarations  of  the  particeps  criminis  in  adultery  are  not  admis- 
sible. Doughty  v.  Doughty,  32  N.  J.  Eq.  32;  Berckmans  v.  Berck- 
mans,  16  N.  J.  Eq.  122. 

Maryland. 

Conspiracy. —  The  fact  of  conspiracy  must  be  prima  facie  estab- 
lished to  the  satisfaction  of  the  judge,  and  thereupon  acts  and  dec- 
larations of  each  conspirator  in  pursuance  of  their  plan  are  admis- 
sible against  the  others.     Bloomer  v.  State,  48  Md.  521. 

Two  persons  having  conspired  to  commit  a  crime,  statements  and 
letters  by  one  in  furtherance  thereof  are  admissible  against  both. 
Hays  v.  State,  40  Md.  633. 

Pennsylvania. 

General  rule. —  Hinckman  v.  Richie,  Brightly  143;  Weil  v.  Cohn, 
4  Pa.  Super.  Ct.  443;  Com.  v.  Eberle,  3  S.  &  R.  9;  Hartman  v.  Diller, 
62  Pa.  37;  Heine  v.  Com.,  91  Pa.  145. 

An  overt  act  by  one  conspirator  is  admissible  against  the  others. 
Com.  v.  O'Brien,  140  Pa.  555. 

After  having  proved  a  concert  to  commit  burglary,  it  is  permis- 
sible to  prove  a  conversation  between  one  of  the  conspirators  and 
the  person  whose  house  was  invaded  whereby  the  information  upon 
which  all  three  acted  was  obtained.     Com.  v.  Biddle,  200  Pa.  640. 

Conspiracy  having  been  shown,  every  act  and  word  of  each  con- 
spirator in  carrying  out  the  scheme  is  admissible  against  the  others. 
Com.  v.  Kirkpatrick,  15  Leg.  Int.  268;  Burns  v.  McCabe,  72  Pa.  309. 

Declarations  of  confederates  made  in  prisoner's  presence  just  prior 
to  the  murder  are  admissible  against  him.  Com.  v.  Bubnis,  197  Pa. 
542. 

Preliminary  proof. —  The  existence  of  the  conspiracy  must  be 
shown  prima  facie  before  the  rule  applies.  Com.  v.  O'Brien,  140  Pa. 
555:  Com.  v.  Zmm,  16  Pa.  Super.  Ct.  588;  Donnelly  v.  Com., 
6  Wkly.  Notes  Cas.   104;   Marshall  v.  Fadclis,  199  Pa.  397. 

The  community  of  purpose  must  be  shown  by  evidence  other  than 
the  acts  or  statements  of  one.  Benford  v.  Sanner,  40  Pa.  9 ;  Helser 
v.  McGrath,  58  Pa.  458. 

3 


34  A  DIGEST  OF  [Past  I. 

But  only  slight  evidence  is  required.  McDowell  v.  Russell,  37  Pa. 
164;  Scott  v.  Baker,  37  Pa.  330. 

Declarations  after  the  fact. —  Declarations  of  one  conspirator  made 
after  the  consummation  of  their  object  are  not  admissible  against 
the  others.  Wagner  v.  llaalc,  170  Pa.  495;  Heine  v.  Com.,  91  Pa. 
145. 

The  admissions  of  one  conspirator  after  the  purpose  has  been  car- 
ried out  are  not  admissible  against  the  others.  Com.  v.  Kirkpat- 
rick,  15  Leg.  Int.  268;  Benford  v.  Sanner,  40  Pa.  9. 

Civil  and  criminal  cases. —  The  rule  of  this  article  applies  to  both 
civil  and  criminal  cases.     Loioe  v.  Dalrymple,  117  Pa.  564. 

Combinations  to  defraud. —  Where  a  combination  to  defraud  ci-ed- 
itors  has  been  shown,  the  statements  of  any  one  in  the  combination 
are  evidence  against  the  others.  McKee  v.  Gilchrist,  3  Watts,  230; 
Jackson  v.  Summerville,  13  Pa.  359;  McCaskey  v.  Graff,  23  Pa. 
321;  Eelsey  v.  Murphy,  26  Pa.  78;  Dealers  v.  Temple,  41  Pa.  234; 
Brown  v.  Parkinson,  56  Pa.  336;  Confer  v.  McNeal,  74  Pa.  112. 

Where  the  garnishee  and  principal  debtor  are  shown  to  have  made 
a  fraudulent  combination,  statements  of  one  are  admissible  against 
the  other.  Palmer  v.  G-ilmore,  148  Pa.  48;  Sommer  v.  G-ilmore,  160 
Pa.  129. 

Article  5.* 

TITLE. 

When  the  existence  of  any  right  of  property,  or  of  any 
right  over  property  is  in  question,  every  fact  which  consti- 
tutes the  title  of  the  person  claiming  the  right,  or  which 
shows  that  he,  or  any  person  through  whom  he  claims,  was 
in  possession  of  the  property,  and  every  fact  which  consti- 
tutes an  exercise  of  the  right,  or  which  shows  that  its  exer- 
cise was  disputed,  or  which  is  inconsistent  with  its  existence 
or  renders  its  existence  improbable,  is  deemed  to  be  rele- 
vant. 

Illustrations. 

(a)   The  question  is,  whether  A  has  a  right  of  fishery  in  a  river. 

An  ancient  inquisitio  post  mortem  finding  the  existence  of  a  right 

*  See  Note  IV.;  see  also  Article  88  as  to  the  proof  of  ancient  deeds. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  35 

of  fishery  in  A's  ancestors,  licenses  to  fish  granted  by  his  ancestors, 
and  the  fact  that  the  licensees  fished  under  them,  are  deemed  to  be 
relevant.8 

(b)  The  question  is,  whether  A  owns  land. 

The  fact  that  A's  ancestors  granted  leases  of  it  is  deemed  to  be 
relevant.9 

(c)  The  question  is,  whether  there  is  a  public  right  of  way  over  A'e 
land. 

The  facts  that  persons  were  in  the  habit  of  using  the  way,  that 
they  were  turned  back,  that  the  road  was  stopped  up,  that  the  road 
was  repaired  at  the  public  expense,  and  A's  title-deeds  showing  that 
for  a  length  of  time,  reaching  beyond  the  time  when  the  road  was 
said  to  have  been  used,  no  one  had  power  to  dedicate  it  to  the  public, 
are  all  deemed  to  be  relevant.^ 

(d)  The  question  is,  whether  A  has  a  several  fishery  in  a  river. 
The  proceedings  in  a  possessory  suit  in  the  Irish  Court  of  Chancery 
by  the  plaintiff's  predecessor  in  title,  and  a  decree  in  that  suit  quiet- 
ing the  plaintiff's  predecessor  in  his  title,  is  relevant,  as  showing  pos- 
session and  enjoyment  of  the  fishery  at  the  time  of  the  suit.*1 

AMERICAN   NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed. ),  sees.  34,  53a; 
1  Taylor  on  Evidence  (Chamberlayne's  9th  ed.),  sec.  123;  Abbott's 
Trial  Evidence  (2d  ed.),  p.  873. 

Boston  v.  Richardson,  105  Mass.  351;  Gloucester  v.  Gaffney,  8 
Allen   (Mass.),  11;  Berry  v.  Raddin,  11  Allen   (Mass.),  577;   Osgood 

8  Rogers  v.  Allen,  1808,  1  Camp.  309. 

9  Doe  v.  Pulman,  1S42,  3  Q.  B.  622,  623,  626  (citing  Duke  of  Bed- 
ford v.  Lopes).  The  document  produced  to  show  the  lease  was  a 
counterpart  signed  by  the  lessee.    See  post,  art.  64. 

io  Common  practice.  As  to  the  title-deeds.  Brough  v.  Lord  Scars- 
dale,  Derby  Summer  Assizes,  1865.  In  this  case  it  was  shown  by  a 
series  of  family  settlements  that  for  more  than  a  century  no  one  had 
had  a  legal  right  to  dedicate  a  certain  footpath  to  the  public. 

11  Neill  v.  Duke  of  Devonshire,  1882,  L.  R.  8  App.  p.  135,  and  se« 
especially  p.  147. 


36  A  DIGEST  OF  L^aet  1. 

v.  Coates,  1  Allen  (Mass.),  77;  Brown  v.  Cantrell,  62  Ga.  257; 
Hayne  v.  Hermann,  97  Cal.  259,  32  Pac.  171. 

Evidence  of  the  character  indicated  in  the  text  is  admissible  as  a 
part  of  the  res  gestce.  Harriman  v.  Hill,  14  Me.  127;  McDonald  v. 
McDonald,  130  Ind.  603,  30  N.  E.  286. 

On  questions  of  title,  declarations  explanatory  of  acts  of  possession, 
and  in  disparagement  of  title,  are  admissible.  Parker  v.  Marston,  34 
Me.  380;  Bennett  v.  Camp,  54  Vt.  30;  Hobbs  v.  Cram,  22  N.  H.  130; 
Blount  v.  Homey,  43  Mo.  App.  644. 

Mere  declarations  in  favor  of  title,  not  explanatory  of  any  act  by 
•one  in  possession,  are  not  admissible.  Smith  v.  Martin,  17  Conn. 
401;  Morrill  v.  Titcomb,  8  Allen  (Mass.),  100;  Osgood  v.  Coates,  1 
Allen    (Mass.),  77. 

The  fact  of  executing  a  chattel  mortgage  may  thus  be  shown.  Chil- 
lingworth  v.  Eastern,  Tinware  Co.,  66  Conn.  313. 

Statements,  by  one  in  possession  of  property,  to  the  effect  that  it 
was  his,  and  the  fact  that  he  offered  to  sell  it,  and  repaired  it  at  his 
own  expense,  are  admissible  on  the  question  of  title,  being  acts  "  while 
he  was  in  the  possession  of  it,  which  naturally  and  usually  flow  from 
and  accompany  the  ownership  of  personal  property."  Avery  v.  dem- 
ons, 18  Conn.  309. 

Disputed  boundaries. —  As  to  what  evidence  is  admissible  to  estab- 
lish boundary  through  wild  land  ,  see  Hunt  v.  Jackson,  19  N.  Y.  279. 

As  to  what  evidence  is  admissible,  to  establish  acquiescence  in  a 
practical  location,  see  Ratcliffe  v.  Gray,  3  Keyes,  510,  4  Abb.  Dec.  4. 

New  Jersey. 

Judgments. —  The  existence  of  a  judgment  as  a  part  of  a  chain  of 
title  may  be  shown  even  in  controversies  with  third  parties.  Den. 
v.  Hamilton,   7   Hal.   109. 

Boundaries. —  Where  a  boundary  is  doubtful  the  practical  con- 
struction of  the  deed  by  the  parties  is  competent  evidence.  Haring 
v.  Van  Houten,  2  Zab.  01:  Smith  v.  State,  3  Zab.  130;  Stockham  v. 
Browning,  18  N.  J.  Eq.  390. 

Acts  of  the  parties. —  Evidence  of  acts  under  a  contract  and  ac- 
quiescence therein  admitted  to  prove  the  existence  of  such  contract. 
Veghte  v.  Raritan  Co.,  19  N.  J.  Eq.   142. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  37 

Maryland. 

Title. —  To  prove  title  in  replevin  acts  of  ownership  over  the  prop- 
erty may  be  proved.     Smith  v.  Wood,  31  Md.  293. 

Rolls  and  debt-books  are  admitted  to  prove  possession.  Carroll  v. 
Norwood,  1  H.  &  J.   167;   (liftings  v.  Hall,  1  H.  &  J.  14. 

A  judgment  is  evidence  as  against  anybody  when  it  is  a  link  in  a 
chain  of  title.  Barney  v.  Patterson,  6  Har.  &  J.  182;  House  v.  Wiles, 
12  G.  &  J.  338. 

Pennsylvania. 

Authorities.—  Sailor  v.  Hertzog,  10  Pa.  296. 

Books  and  papers  of  the  land-office  are  admissible  to  prove  title. 
Goddard  v.  Gloninger,  5  Watts,  209;  Struthers  v.  Reese,  4  Pa.  129; 
Dikeman  v.  Parrish,  6  Pa.  210;  Vastbinder  v.  Wager,  6  Pa.  339: 
Str'unpflcr  v.  Roberts,  18  Pa.  283. 

Evidence  that  one  insured  certain  goods  is  admissible  to  prove 
his  title.     Dicken  v.   Winters,   169  Pa.   126. 

In  action  for  negligence,  evidence  of  the  receipt  of  insurance 
money  for  loss  by  fire  is  admissible  to  prove  ownership,  drier  v. 
Sampson,  27  Pa.  183. 

A  deed  is  admissible  to  show  that  one  is  in  possession  under  color 
of  title,  even  though  no  title  whatever  was  conveyed  by  the  deed 
itself.  Dieze  v.  Fackler,  7  Phila.  220,  223;  McCoy  v.  College,  5 
S.  &  R.  254. 

The  minutes  of  a  canal  company  and  its  occupation  of  a  canal  for 
many  years  are  admissible  to  prove  its  ownership.  Canal  Co.  v. 
Loyd,  4  W.  &  S.  393. 

The  seizure  of  specific  property  in  execution  by  one  holding  a 
judgment  is  admissible  to  prove  his  want  of  title  otherwise.  War- 
ner v.  Scott,  39  Pa.  274. 

Assessment-books  and  tax  receipts  admissible  on  question  of  title. 
Irvin  v.  Patchin,  164  Pa.  51. 

The  acts  and  declarations  of  the  owner  of  personal  property  are 
admissible  against  those  claiming  under  him.  Caldwell  v.  Gamble, 
4  Watts,  292. 

Judgments. —  A  judgment  which  is  the  basis  of  title  to  chattels  is 
admissible.     Martin  v.  Rutt,  127  Pa.  380. 


38  A  DIGEST  OF  [Part  I. 


Article  6. 

CUSTOMS. 

When  the  existence  of  any  custom  is  in  question,  every 
fact  is  deemed  to  be  relevant  which  shows  how,  in  particular 
instances,  the  custom  was  understood  and  acted  upon  by 
the  parties  then  interested. 

Illustrations. 

(a)  The  question  is,  whether,  by  the  custom  of  borough-English  as 
prevailing  in  the  manor  of  C,  A  is  heir  to  B. 

The  fact  that  other  persons,  being  tenants  of  the  manor,  inherited 
from  ancestors  standing  in  the  same  or  similar  relations  to  them  as 
that  in  which  A  stood  to  B,  is  deemed  to  be  relevant. 12 

( b )  The  question  was,  whether  by  the  custom  of  the  country  a 
tenant-farmer  not  prohibited  by  his  lease  from  doing  so  might  pick 
and  sell  surface  flints,  minerals  being  reserved  by  his  lease.  The  fact 
that  under  similar  provisions  in  leases  of  neighbouring  farms  flints 
were  taken  and  sold  is  deemed  to  be  relevant.13 

AMERICAN  NOTE. 
General. 

Authorities. —  2  Greenleaf  on  Evidence  (15th  ed.),  sec.  252; 
Knoioles  v.  Dow,  22  N.  H.  387,  403,  55  Am.  Dec.  163;  First  Nat. 
Bank  v.   Goodscll,  107   Mass.   149;    Morse  v.   Woodworth,   155  Mass. 

^Muggleton  v.  Barnett,  1856,  1  H.  &  N.  282;  and  see  Johnstone 
v.  Lord  Spencer,  1885,  30  Ch.  Div.  581.  It  was  held  in  this  case  that 
a  custom  might  be  shown  by  uniform  practice  which  was  not  men- 
tioned in  any  custumal  Court  roll  or  other  record.  For  cases  of  evi- 
dence of  a  custom  of  trade,  see  Ex  parte  Powell,  in  re  Mathews,  1875, 
1  Ch.  D.  501 :  and  Ex  parte  Turquand,  in  re  Parker,  1885,  14  Q.  B.  D. 
636.  See  too  the  Notes  on  Wigglesworth  and  Dallison,  in  1  Smith's 
Leading  Cases. 

13  Tucker  v.  Linger,  1882,  L.  R.  21  Ch.  Div.  18;  and  see  p.  37. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  39 

233,  29  N.  E.  525;  Chateaugay  Ore  cC-  Iron  Co.  v.  Blake,  144  U.  S. 
476;  Governor  v.  Withess,  5  Gratt.  (Va.)  24,  50  Am.  Dec.  95;  Adams 
v.  Pittsburg  Iron  Co.,  95  Pa.  St.  348,  40  Am.  Rep.  662.  But  see  27 
Am.  &  Eng.  Encyclopaedia  of  Law  (1st  ed.),  p.  738. 

To  prove  that  a  note  executed  by  C,  as  treasurer  of  a  town,  was  the 
note  of  the  town, —  Held,  that  evidence  was  admissible  of  votes  passed 
by  the  town,  from  time  to  time,  during  a  long  period  of  years,  au- 
thorizing its  treasurers  to  borrow  money,  for  the  use  of  tho  town,  and 
that  the  treasurers,  under  such  votes,  had  generally  given  notes  for 
the  money  borrowed,  similar  in  form  to  that  in  question,  which  had 
always  been  paid  by  the  town,  by  which  also  the  treasurers'  reports, 
mentioning  these  bonds,  had  always  been  accepted.  Bank  of  New  Mil- 
ford  v.  Neiv  Milford,  36  Conn.  100. 

The  purchaser  of  a  cemetery  lot  from  the  person  who  laid  out  the 
cemetery  received  a  deed,  from  the  language  of  which  it  was  uncertain 
whether  a  title  to  the  adjoining,  alleys  passed  or  not.  Held,  that  evi- 
dence was  admissible  in  favor  of  the  grantor  that  it  was  the  custom 
in  other  cemeteries,  both  in  the  same  town  and  elsewhere,  for  the  orig- 
inal proprietors  to  have  and  retain  the  right  of  control,  etc.,  over  the 
alleys.    Seymour  v.  Page,  33  Conn.  66. 

Trade  Customs. —  As  to  proving  customs  of  trade  or  business,  see 
Mathias  v.  O'Neill,  94  Mo.  520,  6  S.  W.  253;  Adams  v.  Pittsburgh 
Ins.  Co.,  95  Pa.  St.  348,  40  Am.  Rep.  662;  Chateaugay  Iron  Co.  v. 
Blake,  144  U.  S.  476. 

One  witness  enough. —  A  usage  may  be  established  by  one  witness 
Robinson  v.  U.  8.,  13  Wall.  363;  Sawtelle  v.  Drew,  122  Mass.  228. 


New  Jersey. 

Proof  of  business  customs. —  Ocean  Beach  Assn.  v.  Brinley,  34  N.  J. 
Eq.  438. 

The  custom  of  an  individual. —  A  testator's  custom  of  canceling 
notes  by  cutting  off  his  signature  admitted  to  prove  cancellation  of 
his  will  in  a  similar  manner.    Smock  v.  Smock,  11  N.  J.  Eq.  156. 

A  factor's  custom  of  entering  in  his  books  whether  or  not  sales 
were  guaranteed  not  admissible  to  prove  that  he  did  not  guarantee 
a  certain  one.     Park  v.  Miller,  27  N.  J.  L.  338. 


40  A  DIGEST  OF  [Part  I. 


Trade  customs. —  Barton  v.  McKehcay,  2  Zab.  165;  Steward  v. 
Scudder,  4  Zab.  96;  Schenck  v.  Griff  en,  38  N.  J.  L.  463. 

Custom  giving  a  partner  the  right  to  interest  on  advances  made 
to  the  firm.     Morris  v.  Allen,   14  N.  J.  Eq.  44. 


Maryland. 

Proof  of  custom. —  A  custom  cannot  be  proved  by  the  testimony 
of  a  single  person  who  knows  of  but  a  single  instance.  Duvall  v. 
Bank,  9  G.  &  J.  31. 

Question  of  fact. —  Whether  a  custom  exists  is  a  question  of  fact 
for  the  jury.  Burroughs  v.  Langley,  10  Md.  248;  B.  &  0.  R.  It.  Co. 
v.  Green,  25  Md.  72. 

A  general  business  usage  must  be  established  as  a  fact  and  cannot 
be  established  by  opinion  evidence  based  upon  a  few  instances  in 
particular  institutions.     Bank  v.  Swain,  29  Md.  483. 

Personal  custom. —  One's  personal  custom  as  to  drawing  deeds  not 
admitted.     Pocock  v.  Hendricks,  8  G.  &  J.  421. 

Pennsylvania. 

Custom. —  Proof  of  an  isolated  instance  is  not  enough  to  prove  a 
custom  and  notice  thereof.  Cope  v.  Dodd,  13  Pa.  33;  Adams  v.  In- 
surance Co.,  76  Pa.  411. 

A  custom  in  violation  of  morality  and  law  is  not  admissible 
Holmes  v.  Johnson,  42  Pa.  159. 

A  custom  in  a  city  to  permit  water  from  the  roofs  to  flow  across 
pavements  not  admissible  in  action  for  damages  caused  by  a  fall. 
Brown  v.  White.  202  Pa.  297. 

One's  custom  of  drawing  notes  differently  when  for  different  pur- 
poses admitted  to  show  that  a  certain  note  was  for  goods  sold. 
Snyder  v.  Wertz,  5  Whart.  163. 

Evidence  of  a  custom  contrary  to  the  common  law  not  received. 
Stoever  v.  Whitman,  €>  Binn.  416. 

Trade  customs. —  As  to  proving  customs  of  trade  or  business,  see 
Adams  v.  Pittsburgh  Ins.  Co.,  95  Pa.  348.  40  Am.  Rep.  662. 

Custom  of  trading  between  plaintiff  and  deceased  is  admissible 
to  prove  a  completed  sale.     Cope's  Estate,  191  Pa.  589. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  41 


Article  7. 

motive,  preparation,  subsequent  conduct,  explana- 
tory statements. 

When  there  is  a  question  whether  any  act  was  done  by 
any  person,  the  following  facts  are  deemed  to  be  relevant, 
that  is  to  say  — 

any  fact  which  supplies  a  motive  for  such  an  act,  or 
which  constitutes  preparation  for  it  ;14 

any  subsequent  conduct  of  such  person  apparently  in- 
fluenced by  the  doing  of  the  act,  and  any  act  done  in  conse- 
quence of  it  by  or  by  the  authority  of  that  person.15 

Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

The  facts  that,  at  the  instigation  of  A,  B  murdered  C  twenty- five 
years  before  B's  murder,  and  that  A  at  or  before  that  time  used  ex- 
pressions showing  malice  against  C,  are  deemed  to  be  relevant  as 
showing  a  motive  on  A's  part  to  murder  B.16 

(6)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  A  procured  the  instruments  with  which  the  crime  was 
committed  is  deemed  to  be  relevant.17 

(c)  A  is  accused  of  a  crime. 

The  facts  that,  either  before  or  at  the  time  of,  or  after  the  alleged 
crime,  A  caused  circumstances  to  exist  tending  to  give  to  the  facts  of 
the  case  an  appearance  favourable  to  himself,  or  that  he  destroyed  or 
concealed  things  or  papers,  or  prevented  the  presence  or  procured  the 

14  Illustrations  (a)  and  (6). 

16  Illustrations  (c)    (d)  and  (e). 

16  R.  v.  Clewes,  1830,  4  C.  &  P.  221. 

17  i?.  v.  Palmer,  1856,  printed  report  from  Notes  of  Anglo  Taylc 
and  Gen.  View,  230-272,  passim. 


42  A  DIGEST  OF  [Paet  I. 

absence  of  persons  who  might  have  been  witnesses,  or  suborned  per- 
sons to  give  false  evidence,  are  deemed  to  be  relevant.18 

(d)  The  question  is,  whether  A  committed  a  crime. 

The  facts  that,  after  the  commission  of  the  alleged  crime,  he  ab- 
sconded, or  was  in  possession  of  property  or  the  proceeds  of  property 
acquired  by  the  crime,  or  attempted  to  conceal  things  which  were  or 
might  have  been  used  in  committing  it,  and  the  manner  in  which  he 
conducted  himself  when  statements  on  the  subject  were  made  in  hi9 
presence  and  hearing,  are  deemed  to  be  relevant.1^ 

(e)  The  question  is,  whether  A  suffered  damage  in  a  railway  acci- 
dent. 

The  fact  that  A  conspired  with  B,  C,  and  D  to  suborn  false  wit- 
nesses in  support  of  his  case  is  deemed  to  be  relevant,20  as  conduct 
subsequent  to  a  fact  in  issue  tending  to  show  that  it  had  not  happened. 

AMERICAN  NOTE. 
General. 

Authorities. —  Underbill  on  Evidence,  sec.  9 ;  McKelvey  on  Evi- 
dence, p.  146;  11  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed. ),  p.  503 
et  seq. 

Motive. —  Facts  supplying  a  motive  may  be  shown  in  connection 
with  other  evidence.  State  v.  Palmer,  65  N.  H.  216;  Dodge  v.  Car- 
roll, 59  N.  H.  237;  State  v.  Watkins,  9  Conn.  52,  54;  Com.  v.  Mc- 
Carthy, 119  Mass.  354;  Com.  v.  Bradford,  126  Mass.  42;  Com.  v. 
Abbott,  130  Mass.  "472;  Com.  v.  Choate,  105  Mass.  451;  Com.  v. 
Hudson,  97  Mass.  565;  Com.  v.  Vaughan,  9  Cush.  (Mass.)  594; 
Scott  v.  People,  141  111.  195;  Benson  v.  State,  119  Ind.  4S8;  Tucker 
v.  Tucker,  74  Miss.  93,  32  L.  R.  A.  623;  State  v.  Glahn,  97  Mo.  679; 
Moore  v.  U.  S.,  150  U.  S.  57;  Alexander  v.  V.  S.,  138  U.  S.  353. 

That  the  victim  had  been  pressing  the  accused  for  payment  of  a 
debt  is  relevant,  as  showing  motive,  in  a  trial  for  murder.  Com.  y. 
Webster,  5  Cush.   (Mass.)   295. 

18 R.  v.  Patch,  1805,  Wills  Circ.  Ev.  (4th  ed.)  239;  R.  v.  Palmer, 
ub.  sup.  (passim) . 

19  Common  practice. 

20  Moriarty  v.  London.  Chatham  and  Dover  Ry.  Co.,  1870,  L.  R. 
5  Q.  B.  314;  compare  Grey  v.  Redman,  1875,  1  Q.  B.  D.  161. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  43 

The  fact  of  excessive  insurance  may  be  shown  in  the  trial  of  the 
owner  of  a  house,  who  is  charged  with  unlawfully  burning  it,  as  it 
tends  to  supply  a  motive.  Com.  v.  McCarthy,  119  Mass.  354;  State 
v.  Cohn,  9  Nev.  179. 

Evidence  of  motive  must  not  be  too  remote.  Com.  v.  Abbott,  130 
Mass.  472. 

Threats. —  Threats  to  do  the  act  may  be  proved.  Caverno  v.  Jones, 
CI  X.  H.  623;  State  v.  Day,  79  Me.  120;  State  v.  Bradley,  G4  Vt.  466, 
24  Atl.  1053;  Mead  v.  Busted,  49  Conn.  337;  State  v.  Boyt,  46 
Conn.  330;  State  v.  Bawley,  63  Conn.  49;  State  v.  Kallaher,  70 
Conn.  398;  State  v.  Fry,  67  la.  475;  People  v.  Eaton,  59  Mich. 
559;  Com.  v.  Bolmes,  157  Mass.  233;  Com.  v.  Crowe,  165  Mass.  140. 

Remote  and  obscure  allusions,  by  the  accused,  to  the  act  in  contem- 
plation are  admissible  on  a  criminal  prosecution,  as  tending  to  show 
an  existing  disposition  or  design.    State  v.  Boyt,  47  Conn.  538,  539. 

The  threats  of  third  persons  are  not  admissible.  State  v.  Beaudeaut, 
53  Conn.  536. 

Preparation. — 'Acts  of  preparation  may  be  proved.  Com.  v.  Choate, 
105  Mass.  451;  Com.  v.  Blair,  126  Mass.  40;  Com.  v.  Robinson,  146 
Mass.  571,  16  N.  E.  452;  People  v.  Hope,  62  Cal.  291;  Spies  v. 
People,  122  111.  1 ;   McManus  v.  Com.,  91  Pa.  57. 

-\-  tending  to  show  whether  a.  horse  was  sold  with  or  without  a 
warranty,  the  advertisement  of  the  sale  is  admissible.  McGaughey  v. 
Richardson,  148  Mass.  608. 

That  the  accused  obtained  the  instruments  with  which  the  crime 
was  committed  may  be  proved.  Com.  v.  Roach,  108  Mass.  289 ;  Com.  v. 
Blair,  126  Mass.  40. 

Malice. —  Declarations  showing  7nalice  towards  the  victim  are  ad- 
missible. Mead  v.  Husted,  49  Conn.  337;  State  v.  Boyt,  46  Conn. 
330;  Com.  v.  Goodwin,  14  Gray  (Mass.),  55;  Com.  v.  Bolmes.  157 
Mass.  233. 

Statement  of  intention. —  And  so  is  a  declaration  of  intention  to  do 
the  act.    Mills  v.  Sword  Lumber  Co.,  63  Conn.  108. 

But  a  declaration  that  one  will  not  do  a  certain  act  is  not  admis- 
sible to  show  that  he  did  not  do  it.     Fowler  v.  Madison,  55  N.  H.  171. 

Sustaining  text. —  Elwell  v.  Russell,  71  Conn.  462. 

Subsequent  conduct. —  The  making  of  false  statements  after  the  al- 
leged act,  which  would  tend  to  give  a  wrong  impression  concerning  the 
connection  of  the  one  sought  to  be  held  accountable  with  the  act,  may 
be  shown.    State  v.  Reed,  62  Me.  129;  State  v.  Benner,  64  Me.  267; 


44  A  DIGEST  OF  [Part  I. 

Com.  v.  Webster,  5  Cush.  (Mass.)  316,  52  Am.  Dec.  711;  Com.  v. 
Trefethen,  157  Mass.  180,  31  N.  E.  961,  24  L.  It.  A.  235;  State  v. 
Meed,  62  Me.  129. 

And  so  may  the  fabrication  of  evidence.  State  v.  Williams,  27  Yt. 
226;  Lyons  v.  Lawrence,  12  111.  App.  53;  Heslop  v.  Heslop,  82  Pa. 
537. 

And  efforts  to  secure  the  absence  of  witnesses.  State  v.  Barron, 
37  Vt.  57;  State  v.  Nocton,  121  Mo.  537;  and  attempts  to  bribe  a 
juror.  Hastings  v.  Stetson,  130  Mass.  76;  Taylor  v.  Oilman,  60 
N.  H.  506;  or  to  escape  justice.  /State  v.  Frederic,  69  Me.  400;  State 
v.  Palmer,  60  N.  H.  216,  20  Atl.  6;  Hickory  v.  17.  S.,  160  U.  S.  408. 

The  subsequent  conduct  of  the  alleged  victim  may  also  be  shown, 
e.  g.,  in  assault  with  intent  to  procure  an  abortion.  State  v.  Lee,  69> 
Conn.  186. 

Willingness  or  unwillingness  to  be  searched  may  be  shown.  Riley 
v.  Gourley,  9  Conn.  161. 

The  accused,  in  order  to  meet  evidence  that  he  gave  a  false  account 
of  himself,  cannot  show  that  on  other  occasions  he  gave  a  true  account. 
Com.  v.  Goodwin,  14  Gray   (Mass.),  55. 

Hiding  or  flight  after  the  act,  to  avoid  arrest,  may  be  proved. 
Com.  v.  Annis,  15  Gray  (Mass.),  197;  Corn.  v.  Tolliver,  119  Mass. 
312;   Com.  v.  Brigham,   147  Mass.  414; 

Authorities  on  the  last  proposition  of  the  text. —  Elwell  v.  Russell, 
71  Conn.  462;  Jewell  v.  Jewell,  1  How.  (U.  S.)  219,  232;  Morris  v. 
French,  106  Mass.  326;  Banfield  v.  Whipple,  10  Allen  (Mass.),  27; 
Hitchum  v.  State,  11  Ga.  615,  621;  Taylor  v.  Gilman,  60  N.  H.  506; 
Lovell  v.  Briggs,  2  N.  H.  218. 

In  a  civil  case  the  conduct  of  anv  one  naturally  influenced  by  the  al- 
leged act  may  be  shown.  Thus  the  question  being  whether  a  gift  was 
made,  the  conduct  of  the  alleged  donee  may  be  shown.  Brown  v. 
Butler,  71  Conn.  582. 

Evidence  of  repairs  after  an  accident  has  been  held  irrelevant  on 
the  issue  of  negligence.  A.,  T.  &  S.  F.  R.  R.  Co.  v.  Parker,  53  Fed. 
Rep.  595,  and  cases  cited. 

Evading  arrest. —  It  is  competent  to  show  that  the  accused  at- 
tempted to  evade  the  officers.     People  v.  Taylor,  3  N.  Y.  Cr.  297. 

Fabricating  evidence. —  That  one  has  attempted  to  fabricate  evi- 
dence for  the  purposes  of  defense  may  be  shown.  People  v.  Bass- 
ford,  3  N.  Y.  Cr.  219. 

Bribing  witnesses. —  It  is  competent  to  show  that  an  agent  of  a 
party  employed   to   collect   testimony   and   interview  witnesses   has 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  45 

resorted  to  bribery  even  though  he  was  not  expressly  authorized  to 
employ  such  means.  Nowack  v.  Metropolitan  St.  Ry.  Co.,  166  N.  Y. 
433,  60  N.  E.  32,  reversing  66  N.  Y.  Supp.  533. 

Evidence  of  bribery  while  admissible  is  not  conclusive.  It  is 
proper  to  warn  the  jury  not  to  give  undue  importance  to  su<-'h  testi- 
mony. Nowack  v.  Metropolitan  St.  Ry.  Co.,  166  N.  Y.  433,  60  N.  E. 
32,  reversing  66  N.  Y.  Supp.  533. 

False  or  evasive  testimony. —  Falsehood  and  evasion  by  the  ac- 
cused are  proper  evidence  upon  the  question  of  his  guilt  or  inno- 
cence. People  v.  Conroy,  97  N.  Y.  62,  80,  2  N.  Y.  Cr.  565,  33  Hun, 
119. 

New  Jersey. 

Motive. —  To  prove  motive  in  trial  for  homicide  the  State  may 
prove  how  much  money  deceased  had.  Donnelly  v.  State,  20  N.  J.  L. 
610. 

To  show  motive  for  murder  the  Stair  may  prove  that  the  defend- 
ant and  the  wife  of  the  deceased  occupied  the  same  room  for  two 
nights  shortly  after  the  murder.     Stale  v.  Abbatto,  04  N.  J.  L.  658. 

Intoxication  may  be  shown  on  the  question  of  intent  or  premedi- 
tation. State  v.  Walker,  7  N.  J.  L.  J.  80;  State  v.  Agnew,  10  N.  J. 
L.  J.  105. 

Preparation. — -Statements  in  preparation  for  an  act  are  admis- 
sible with  proof  of  the  act.     Hunter  v.   State,  40  N.  J.   L.  538. 

Subsequent  declarations. —  Only  when  part  of  the  res  gestae  may 
subsequent  declarations  be  introduced  to  explain  a  declaration 
against  interest.     Guild  v.  Alter,  17  N.  J.  L.  310. 

Failure  to  testify. —  Failure  of  an  accused  to  become  a  witness 
may  be  considered  by  the  jury-     Parker  v.  State,  61  N.  J.  L.  308. 

Failure  to  call  witness. —  Failure  to  call  an  alleged  paramour  to 
testify,  although  within  easy  reach,  is  significant  of  guilt.  Blbby  v. 
Bibby,  33  N.  J.  Eq.  56. 

Nonproduction  of  evidence. —  Nonproduction  of  material  documents 
in  one's  possession  raises  a  presumption  against  the  possessor. 
Eckel  v.  Eckel,  49  N.  J.  Eq.  587. 

Voluntary  destruction  of  an  instrument  raises  a  presumption  that 
it  was  unfavorable  to  party  doing  the  act.  Jones  v.  Knauss,  31  N.  J. 
Eq.  609. 

Threats. —  State  v.  Agnew,  10  N.  J.  L.  J.  165. 

Uneommunicated  threats  of  the  deceased  not  admissible  to  sup- 
port the  claim  of  self-defense.     State  v.  Zellers,  7  N.  J.  L.  220. 


46  A  DIGEST  OF  [Pabt  I. 

Maryland. 

Intention. —  One  may  testify  as  to  his  own  intention  where  it  is 
relevant.     Phelps  v.  Georges  Greek  Go.,  CO  Md.  536. 

No  evidence  as  to  one's  intention  is  permitted  when  the  law  raises 
a  conclusive  presumption  concerning  it  from  the  acts  themselves. 
Lineweaver  v.  Slagle,  64  Md.  465. 

One  may  testify  as  to  his  motive  for  doing  a  certain  thing  where 
intention  is  material.     Trader  v.  Lowe,  45  Md.  1. 

Declarations  of  one  accused  of  murder  made  before  the  crime 
are  admissible  to  prove  intent.  State  v.  Ridgely,  2  Har.  &  McH. 
120. 

Evidence  to  show  the  motives  and  intentions  of  the  parties  and 
the  real  nature  of  a  transaction  is  admissible.  Threats  and  artifice. 
Cook  v.  Carr,  20  Aid.  403. 

Threats. —  Threats  and  the  purchase  of  ammunition  by  the  de- 
ceased are  not  admissible  on  behalf  of  the  accused  when  he  did  not 
know  of  either.     Turpin  v.  State,  53  Md.  462. 

State  of  mind  in  homicide. —  The  State  may  show  that  the  accused 
was  armed  and  vindictive  shortly  before  the  homicide.  Kernan  v. 
State,  65  Md.  253. 

Malice. —  To  prove  malice  in  an  action  for  slander,  letters  written 
by  defendant  to  plaintiff,  though  not  published,  are  admissible. 
Gambrill  v.  Schooley,  95  Md.  260. 

Motives  of  outsiders. —  The  motives  of  a  third  party  who  induced 
a  witness  for  the  State  to  leave  the  State  for  a  bribe  are  not  admis- 
sible.    Chelton  v.  State,  45  Md.  560. 

Failure  to  testify. —  Failure  to  testify  when  accused  of  fraud 
raises  a  presumption  against  one.  Dawson  v.  Waltemeyer,  91  Md. 
328. 

The  prosecuting  attorney  may  comment  to  the  jury  on  the  failure 
of  the  accused  to  deny  as  a  witness  the  allegations  of  the  State. 
Brashears  v.  State,  58  Md.  563. 

Proving  a  fact  by  inferior  evidence  when  better  evidence  is  in  the 
possession  of  the  party  warrants  an  inference  that  the  latter  would 
not  be  in  favor  of  his  contention.     Insurance  Co.  v.  Evaiuis,  9  Md.  1. 

Criminal  cases. —  Refusal  or  neglect  of  a  defendant  in  a  criminal 
prosecution  to  testify  raises  no  presumption  against  him.  P.  G.  L. 
1888,  art,   35,   §   3. 

Preparation. —  Proposition  made  by  defendant  to  take  an  unfre- 
quented path  is  admissihle  as  showing  preparation  to  commit  a 
crime:  it  may  he  shown  also  that  defendant  had  a  pistol.  Garlitz  v. 
State,  71  Md.  293. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  47 

Pennsylvania. 

Motive. —  Jealousy  as  motive  for  murder.  McC'ue  v.  Com.,  78  Pa. 
185;  Com.  v.  McManus,  143  Pa.  64.  Other  motives  for  murder. 
Ettinger  v.  Com.,  98  Pa.  338;  Sayres  v.  Com.,  88  Pa.  291. 

The  adiuissiou  by  defendant  of  one  adequate  motive  does  not 
prevent  proof  of  another  by  the  State.     Com.  v.  Spink,  137  Pa.  255. 

Evidence  to  show  that  motive  for  murder  was  to  secure  life  insur- 
ance held  admissible.     Com.  v.  Clemmer,  190  Pa.  202. 

Evidence  that  defendant  was  a  "  Molly  Maguire  "  is  competent  to 
show  motive  for  murder.  Can-oil  v.  Com.,  S4  Pa.  107 ;  Campbell  v. 
Com.,  84  Pa.  187;  McManus  v.  Com.,  91  Pa.  57;  Hester  v.  Com.,  85 
Pa.  139. 

Where  a  question  relates  to  conduct,  evidence  as  to  motives,  feel- 
ing, and  natural  instincts  is  admissible.  Allen  v.  Willard,  57  Pa. 
374. 

In  murder  trial,  evidence  of  the  relation  between  accused  and 
deceased's  wife  is  admissible  to  show  motive.  Com.  v.  Fry,  198  Pa. 
379;   Com.  v.  Ferrigan,  44  Pa.  386;   Turner  v.   Com.,  S6  Pa.  54. 

Possession  by  the  defendant  of  property  obtained  by  the  crime  is 
admissible.     Brown  v.  Com.,  76  Pa.  319. 

Preparation. — -Acts  of  preparation  may  be  proved.  McManus  v. 
Com.,  91  Pa.  57. 

Subsequent  conduct. — ■  Subsequent  conduct  showing  consciousness 
of  guilt  is  admissible.     McCabe  v.  Com.,  8  Atl.  45. 

To  show  a  purpose  or  design  to  hinder,  delay,  or  defraud  creditors 
in  making  a  conveyance,  declarations  of  the  grantor  subsequent  to 
the  conveyance  are  admissible.     Boyer  v.  Weimer,  204  Pa.  295. 

Subsequent  conduct  to  prove  a  conspiracy.  Respublica  v.  Hevice, 
2  Yeates,  114. 

In  action  for  crim.  con.  after  giving  evidence  of  adultery  prior 
to  separation  subsequent  adultery  may  be  proved.  Slierioood  v.  Til- 
man,  55  Pa.  77. 

Subsequent  explanatory  acts.    Reigart  v.  Ellmaker,  10  S.  &  R.  27. 

The  State  may  prove  the  circumstances  of  making  the  arrest,  in- 
cluding the  fact  that  the  defendant  killed  one  of  the  officers.  Com. 
v.  Biddle,  200  Pa.  647. 

Flight  is  evidence  of  guilt.     Com.  v.  Boschino,  176  Pa.  103. 

Subsequent  precautions. —  Precautions  taken  after  an  accident  not 
admissible  to  prove  prior  negligence.  Elias  v.  Lancaster,  203  Pn. 
636;  Baran  v.  Read.  Iron  Co.,  202  Pa.  274;  Hagar  v.  Wharton  Twp., 
200  Pa.  281. 


48  A  DIGEST  OF  [Part  I. 

Jn  an  action  for  damages  caused  by  falling  into  a  culvert,  evidence 
showing  that  the  culvert  was  repaired  after  the  accident  is  not  ad- 
missible.   Fisher  v.  Railroad  Co.,  1S2  Pa.  457. 

In  action  for  negligence  at  u  crossing  it  is  allowable  to  show  that 
the  defendant  shortly  after  erected  gates  there.  Lederman  v.  Penn- 
sylvania R.  Co.,  165  Pa.  118. 

Fabrication  of  evidence. —  Fabrication  of  evidence  indicates  guilt. 
McMeen  v.  Com.,  114  Pa.  300;  Com.  v.  Twitchell,  1  Brewst.  551; 
Heslop  v.  Heslop,  82  Pa.  537. 

it  is  admissible  for  one  to  show  that  the  adverse  party  at  a  pre- 
vious trial  of  the  case  attempted  to  suborn  perjury  and  corrupt 
the  jury.    McHugh  v.  McHugh,  186  Pa.  1U7. 

A  plaintiff  may  be  asked  on  cross-examination  whether  he  did  not 
at  a  previous  trial  of  the  case  attempt  to  influence  the  jury  cor- 
ruptly.   Beck  v.  Hood,  185  Pa.  32. 

False  statements  as  to  what  defendant  did  with  his  child  are  ad- 
missible to  prove  its  murder.     Com.  v.  Johnson,  162  Pa.  63. 

Attention  of  jury  may  be  called  to  contradictory  statements  of  a 
prisoner  in  relation  to  the  crime.     Caihcart  v.  Com.,  37  Pa.  108. 

Evidence  that  insured  died  of  consumption  in  1900  is  admissible 
to  prove  that  he  made  false  statements  in  his  application  in  1899. 
Murphy  v.  Insurance  Co.,  205  Pa.  444. 

Failure  to  produce  testimony. —  Failure  to  produce  evidence  is  not 
necessarily  suppression  thereof.     McCaoe  v.  Com.,  8  Atl.  45. 

Xo  presumption  as  to  what  a  witness'  testimony  would  be  from 
failure  to  call  him.     Com.  v.  McMahon,  145  Pa.  413. 

Flight. —  Flight  of  a  person  charged  with  crime  may  be  considered 
as  indicating  guilt.  Com.  v.  McMahon,  145  Pa.  413;  Com.  v.  Roland, 
8   Phila.  606. 

Threats.—  A  threat  to  rob  is  admissible  on  a  trial  for  murder. 
Com.  v.  Farrell,  187  Pa.  40S. 

Threats  and  flight  to  show  murder.     Com.  v.  Saiyards,  158  Pa.  501. 

Uncommunieated  threats  are  admissible  to  show  motive  and  in- 
tention.    Com.  v.  Keller,  191  Pa.   122. 

Threats  made  by  defendant  to  kill  A  are  not  admissible  on  his 
trial  for  the  killing  of  B.     Ahernethy  v.  Com.,  101  Pa.  322. 

Threats  are  admissible  though  not  made  directly  against  the  de- 
ceased.    Hopkins  v.  Com.,  50  Pa.  9. 

Threats  and  the  commission  of  a  previous  offense  may  be  proved 
in  trial  for  the  murder  of  a  policeman.     Com.  v.  Major.  198  Pa.  290. 

Ability  and  opportunity. —  Declarations  indicating  the  defendant's 
ability  to  "  shut  anybody's  wind  off.''    Com.  v.  Crossmire,  156  Pa.  304. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  49 


Article  8.* 

statements  accompanying  acts,  complaints,  state- 
ments in  presence  of  a  person. 

Whenever  any  act  may  be  proved,  statements  accompany- 
ing and  explaining  that  act  made  by  or  to  the  person  doing 
it  may  be  proved  if  they  are  necessary  to  understand  it.21 

In  criminal  cases  the  conduct  of  the  person  against  whom 
the  offence  is  said  to  have  been  committed,  and  in  particular 
the  fact  that  soon  after  the  offence  he  made  a  complaint  to 
persons  to  whom  he  would  naturally  complain,  are  deemed 
to  be  relevant.  The  terms  of  the  complaint  are  irrelevant ; 
except  that  in  a  case  of  rape  or  other  sexual  offence  where 
the  consent  of  the  person  against  whom  the  offence  was  com- 
mitted to  the  act  charged  as  an  offence  is  in  issue,  the  terms 
of  the  complaint  are  relevant  as  showing  that  the  conduct  of 
such  person  was  consistent  with  the  denial  of  consent.22 

When  a  person's  conduct  is  in  issue  or  is  deemed  to  be 
relevant  to  the  issue,  statements  made  in  his  presence  and 
hearing  by  which  his  conduct  is  likely  to  have  been  affected, 
are  deemed  to  be  relevant.23 

*  See  Note  V. 

21  Illustrations  (a)  and  (6).  Other  statements  made  by  such  per- 
sons are  relevant  or  not  according  to  the  rules  as  to  statements  here- 
inafter contained.     See  ch.  iv.  post. 

22 R.  v.  Lillyman,  [1896],  2  Q.  B.  167;  see  Illustration  (c)  and  the 
note  thereto. 

23  R.  v.  Edmunds,  1833,  6  C.  &  P.  164;  Neil  v.  Jakle,  1849,  2  C. 
&  K.  709. 

4 


50  A  DIGEST  OF  [Past  I. 

Illustrations. 

(a)  The  question  is,  whether  A  committed  an  act  of  bankruptcy,  by 
departing  the  realm  with  intent  to  defraud  his  creditors. 

Letters  written  during  his  absence  from  the  realm,  indicating  such 
an  intention,  are  deemed  to  be  relevant  facts.24 

(6)  The  question  is,  whether  A  was  sane. 

The  fact  that  he  acted  upon  a  letter  received  by  him  is  part  of  the 
facts  in  issue.  The  contents  of  the  letter  so  acted  upon  are  deemed 
to  be  relevant,  as  statements  accompanying  and  explaining  such  con- 
ducts 

(c)  The  question  is  whether  A  was  ravished. 

The  fact  that  shortly  after  the  alleged  rape,  she  made  a  complaint 
relating  to  the  crime,  and  the  terms  of  the  complaint,  and  the  cir- 
cumstances under  which  it  was  made,  are  relevant.26 

The  fact  that,  without  making  a  complaint,  she  said  that  she  had 
been  ravished,  is  not  deemed  to  be  relevant  as  conduct  under  this 
article,  though  it  might  be  deemed  to  be  relevant  (e.  g.)  as  a  dying 
declaration  under  article  26. 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  108;  2  Tay- 
lor on  Evidence  ( Chamberlayne's  9th  ed.),  p.  39146,  sec.  581;  Under- 
bill on  Evidence,  sec.  52. 

Statements  accompanying  act. —  Authorities  on  the  first  paragraph 
of  the  text.  Hall  v.  Young,  37  N.  H.  134;  Garter  v.  Beals,  44  X.  H. 
408;  Whittemore  v.  Wenticorth,  76  Me.  20;  Lund  v.  Tynsborough, 
9  Cush.  (Mass.)  36,  41;  Kingsford  v.  Hood,  105  Mass.  495;  Place 
v.    Gould,    123   Mass.    347;    Milford   v.    Bellingham,    16    Mass.    10S: 


24  Raivson  v.  Haigh,  1824,  2  Bing.  99;  Bateman  v.  Bailey,  1794, 
5  T.  R.  512. 

25  Wright  v.  Doe  d.  Tatham,  1837,  7  A.  &  E.  324-5  (per  Denman, 
C.  J.). 

20  R.  v.  Lillyman,  [1896],  2  Q.  B.  167.  The  above  illustration  and 
that  portion  of  the  text  which  is  founded  on  it,  are  intended  to  ex- 
press the  decision  in  this  case;  but  see  Note  V.  as  to  the  difficulties 
to  which  it  has  given  rise. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  51 

Deoeney  v.  Baxter,  157  Mass.  9;  Bank  v.  Kennedy,  17  Wall.  19,  24; 
McDowell  v.  Goldsmith,  6  Md.  319,  338,  61  Am.  Dec.  305;  Hamilton 
v.  State,  36  Ind.  280,  10  Am.  Rep.  22,  n.;  Bagly  v.  Massie,  38  Ala.  89, 
79  Am.  Dec.  82. 

In  order  that  evidence  be  admissible  as  part  of  the  res  gestce  the 
act  which  it  characterizes,  and  of  which  it  forms  a  part,  must  be  ad- 
missible.    Finney  v.  Jones,  64  Conn.  550,  42  Am.  St.  Rep.  209. 

Declarations  made  by  one  as  he  is  leaving  town,  that  he  is  going 
to  a  particular  place  for  a  particular  purpose,  are  admissible  in  favor 
of  his  representatives,  as  a  part  of  the  res  gestae.  Douglas  v.  Chapin, 
26  Conn.  92. 

Where  the  residence  of  one  is  in  issue,  a  statement  while  travelling 
towards  the  place  claimed  on  the  trial  as  hts  residence,  that  he  "  was 
going  home "  to  B,  is  admissible.  Neio  Milford  v.  Sherman,  21 
Conn.  112. 

In  questions  of  domicil  and  the  like,  statements  accompanying  an 
act  of  removal  are  admissible.  Fulham  v.  Hoioe,  62  Vt.  386 ;  Deer 
Isle  v.  Winterport,  87  Me.  37;  Rudd  v.  Rounds,  64  Vt.  432;  Viles 
v.  Waltham,  157  Mass.  542;  Johnson  v.  Sherwin,  3  Gray  (Mass.), 
374. 

Declarations  of  one  paying  money  are  admissible  on  an  issue  in- 
volving the  application  to  be  made  of  the  payment.  Woodstock  v. 
Clark,  25  Vt.  308. 

Where  sanity  is  in  question  statements  accompanying  conduct  are 
relevant.  Foster's  Exrs.  v.  Dickerson,  64  Vt.  233;  Barbers  Appeal, 
63  Conn.  393. 

The  question  being  where  the  commanding  officers  of  a  company 
of  soldiers  on  a  steamboat  were,  and  what  they  were  doing  to  keep 
order  at  the  time  of  a  disturbance  on  board,  evidence  was  offered  of 
a  conversation  between  a  sergeant  and  commissioned  officer  in  the 
saloon,  referring  to  the  disturbance  as  then  going  on  upon  deck,  and 
the  action  to  be  taken  to  quiet  it.  Held,  to  be  admissible  on  the  ques- 
tion at  issue,  and  as  part  of  the  res  gestae.  Flint  v.  Norwich  &  New 
York  Transp.  Co.,  7  Blatchf.  543-547  (U.  S.  Circuit  Court)  ;  affirmed 
in  13  Wall.  3. 

Narrative  of  past  events. —  A  narrative  of  past  events  is  inadmis- 
sible. Cottison  v.  Cottison,  22  Pa.  375;  Robinson  v.  State,  57  Md. 
14.  Compare  Mutual  Life  Ins.  Co.  v.  Hillmon,  145  U.  S.  285; 
Chicago,  etc.,  R.  Co.  v.  Chancellor,  165  111.  438;  Baxter  v.  Camp,  71 
Conn.  246. 


52  A  DIGEST  OF  [Pabt  I. 

In  an  action  for  injuries  caused  by  the  bite  of  a  dog,  evidence  of 
the  declaration  of  the  plaintiff  that  she  had  been  bitten  by  the  dog, 
made  to  her  mother  within  five  minutes  of  the  injury,  is  but  a  nar- 
rative of  a  past  event,  and  inadmissible  as  part  of  the  res  gestae. 
M'Carrick  v.  Kealy,  70  Conn.  642. 

Complaints. —  The  American  authorities  generally  state  the  rule 
that  the  fact  of  complaint  is  relevant  as  applying  only  to  prosecu- 
tions for  rape  and  other  offenses  against  women.  American  Law 
Review,  vol.  xiv,  pp.  S29-838;  Hay  lies  v.  Com.,  28  Grata.  (Va.)  942, 
and  the  authorities  at  the  head  of  this  note. 

In  rape  cases  the  fact  of  complaint  may  be  shown.  State  v.  Car- 
roll, 67  Vt.  477;  Com.  v.  Phillips,  162  Mass.  504;  Stevens  v.  People, 
158  111.  Ill;  People  v.  Stewart,  97  Cal.  238;  Cross  v.  State,  132 
Ind.  65;  Parker  v.  State,  67  Md.  329;  Lee  v.  State,  74  Wis.  45; 
Johnson  v.  State,  17  Ohio,  593;  Oleson  v.  State,  11  Neb.  276,  38  Am. 
Rep.  366. 

A  delay  of  weeks  or  months,  if  explained,  does  not  render  the  fact 
of  complaint  inadmissible.     State  v.  Wilkins,  66  Vt.  1. 

Nor  does  that  of  more  than  a  year.  It  simply  affects  the  weight 
of  the  evidence.     State  v.  Byrne,  47  Conn.  465,  466,  467. 

The  conduct  of  a  woman  subsequent  to  the  commission  of  an  al- 
leged abortion  may  be  shown  in  a  prosecution  against  one  for  per- 
forming the  abortion.     State  v.  Lee,  69  Conn.  196. 

Evidence  of  constancy  in  accusation  is  admissible.  State  v.  De 
Wolf,  8  Conn.  99. 

Terms  of  complaint  irrelevant. —  The  terms  of  the  complaint  are 
irrelevant.     State  v.  Knapp,  45  N.  H.  148,  155. 

In  some  States  the  converse  of  the  rule  of  the  text  as  to  com- 
plaints in  prosecutions  for  offenses  against  women  has  been  held 
and  the  terms  of  the  complaint  are  considered  relevant.  State  V. 
Kinney,  44  Conn.  153.  26  Am.  Rep.  436;  Burt  v.  State,  23  O.  St. 
394;  Hill  v.  State,  5  Lea  (Tenn.),  725.  See,  also,  Benton  v.  Starr, 
58  Conn.  285.  So  where  the  complainant  is  a  girl  of  tender  years. 
Harmon  v.  State,  70  Wis.  448. 

Statements  of  others. —  Authorities  on  the  rule  of  the  text  that 
statements  made  in  the  presence  of  one  are  admissible.  Johnson  v. 
Day,  78  Me.  224.  3  Atl.  647;  Morrill  v.  Richey,  18  N.  H.  295;  Ettin- 
ger  v.  Com.,  98  Pa.  338;  Watt  v.  People,  126  111.  9;  Conway  v.  State, 
118  Ind.  482;  B.  d  W.  R.  R.  Co.  v.  Dana,  1  Gray  (Mass.),  83;  Com. 
v.  Call.  21  Pick.    (Mass.)    515;   Waldridge  v.  Arnold,  21  Conn.  424; 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  53 

People  v.  Shea,  8  Cal.  538;  Knowlton  v.  Clark,  25  Ind.  391;  Friend 
v.  Hamill,  34  Md.  298,  308.     But  see  Mattocks  v.  Lyman,  16  Vt.  113\ 

The  admissibility  of  statements  made  in  the  presence  of  a  person 
under  the  last  paragraph  of  the  text,  rests  upon  the  theory  that  tacit 
acquiescence  constitutes  an  admission.  Johnson  v.  Day,  78  Me.  224 ; 
Proctor  v.  Old  Colony  R.  R.  Co.,  154  Mass.  251.  The  rule  applies 
when  the  statements  charge  the  commission  of  a  crime.  State  V. 
Reed,  62  Me.  129;  Com.  v.  Galavan,  9  Allen  (Mass.),  271;  Com.  v. 
Bailey,  134  Mass.  527. 

The  rule  does  not  apply  where  the  circumstances  are  such  that  the 
person  cannot  speak,  as  where  the  statements  are  made  in  court. 
State  v.  Boyle,  13  R.  I.  537;  Martin  v.  Capital  Ins.  Co.,  85  la.  G43. 
But  see  Brainard  v.  Buck,  25  Vt.  573,  60  Am.  Dec.  291.  But 
if  the  person  were  subsequently  called  as  a  witness,  and  had  an 
opportunity  to  reply,  the  rule  of  the  text  is  applicable.  Blanchard 
v.  Hodgkins,  62  Me.  119. 

It  has  no  application  where  a  reply  is  not  naturally  called  for. 
Oale  v.  Lincoln,  11  Vt.  152;  Herscy  v.  Barton,  23  Vt.  685;  Pierce's 
Admr.  v.  Pierce,  66  Vt.  369,  29  Atl.  364;  Drury  v.  Hervey,  126  Mass. 
519.  If  a  reply  is  made  it  is  admissible.  Com.  v.  Trefethen,  157 
Mass.  180. 

It  does  not  apply  where  the  person  cannot  hear  or  comprehend  the 
statements.  Tufts  v.  Charlestown,  4  Gray  (Mass.),  537.  Such  evi- 
dence may  go  to  the  jury  with  the  evidence  showing  that  the  state- 
ment was  not  heard.  Mallen  v.  Boynton,  132  Mass.  443:  Com.  v. 
Sliney,  126  Mass.  49. 

It  does  not  apply  where  the  person  has  no  knowledge  of  the  inter- 
est affected  by  the  claim  of  admission  or  of  the  facts.  Ware  v. 
Ware,  8  Me.  42;  Robinson  v.  Blen,  20  Me.   109. 

Complaints  and  exclamations  of  pain. —  Complaints  of  pain  and 
distress,  at  the  time  of  an  alleged  injury,  are  competent.  Caldivell 
v.  Murphy,  11  X.  Y.  416,  1  Duer,  233;  Were/;/  v.  Prisons,  28  N.  Y. 
344;  Matteson  v.  New  York  Central  Railroad  Co..  35  X.  Y.  4S7.  62 
Barb.  364;  Creed  v.  Eartman,  8  Bos.  123;  Baker  v.  Griffin.  10  Bos. 
140;  Lewke  v.  Dry-Dock,  East  Broadway  R.  R.  Co..  46  Hun.  283: 
Powers  v.  West  Troy,  25  Hun,  561.  And  so  are  statements  to  an 
attending  physician.  Cleveland  v.  Neio  Jersey  Steamboat  Co..  5 
Hun,  523;  Murphy  v.  New  York  Central  Railroad  Co..  GO  Barb.  125. 
This  has  not  been  changed  by  the  statute  permitting  the  parties  to  be 
witnesses  in  their  own  behalf.  Hagenlocher  v.  Coney  Island  R.  R.  Co., 
99  X.  Y.  136. 


64  A   DIGEST  OF  [Part  I. 

Exclamations,  "  Take  these  splinters  out  of  my  leg!  take  these 
splinters  out!  "  uttered  immediately  after  the  accident,  are  admis- 
sible, there  being  no  splinters.  West  v.  Manhattan  Ry.  Co.,  10  N.  Y. 
St.  R.  886,  121  N.  Y.  654. 

Res  gestae. —  Evidence  may  come  in  as  part  of  the  res  gestae. 
Wilson  v.  Genseal,  113  111.  403,  405;  Black  v.  Wabash,  etc.,  Co., 
Ill  111.  3.51,  300;  Harding  v.  Harding,  75  111.  App.  590;  Heahj  v. 
People.  103  111.  372. 

Declarations  are  admissible  if  part  of  the  res  gestce.  Paul  y. 
Berry,  78  111.  158;  Bushnell  v.  Wood,  85  111.  88;  Caldwell  v.  Goioey, 
85  111.  011;  G.  Accident  Ins.  Co.  v.  Gerrish,  163  111.  625;  C.  d  E.  I. 
/,'.  R.  Co.  v.  Chancelor,  165  111.  438,  reversing  60  111.  App.  525. 

Declarations  admissible  as  res  gestae  may  be  in  favor  of  the  de- 
clarant.    Oliphant  v.  Liversidge,  142  111.  160. 

Illustration  of  res  gestae. —  Statements  made  while  doing  an  act 
are  admissible  as  part  of  the  res  gestce.  Medley  v.  People,  49  111. 
App.  218. 

Declarations  by  a  person  while  going  to  a  place  are  admissible 
on  the  issue  of  domicile.  Matzenbaugh  v.  People,  194  111.  108,  62 
N.  E.  546. 

Statements  while  removing  a  fence  may  be  admissible.  Welch 
v.  Louis,  31  111.  446,  458. 

The  declarations  of  a  lenant  when  making  an  entry  may  be 
admissible     Hardisty  v.  Glenn,  32  111.  62. 

It  is  competent  to  prove  the  statement  of  the  accused  made 
when  stolen  properly  was  found  in  his  possession.  Bennett  v. 
People,  96  111.  602. 

Statements  accompanying  payment  may  be  admissible  as  res 
gestce.     Rigg  v.  Cook,  4  Gilm.  336. 

The  declarations  of  a  grantor  made  at  the  time  of  making  a 
deed  may  be  admissible  as  res  gestae.  Lambe  v.  Manning,  171  111. 
612,  49  N.  E.  .509.  See  also  Penn.  Co.  v.  McCaffrey,  173  111.  169, 
50  N.  E.  713. 

Entries  made  by  bank  officers  on  discounting  and  renewing  a 
note  are  admissible  as  res  gestce.  Reynolds  v.  Summer,  120  111. 
58.   05. 

Conduct  of  passengers  on  the  occurring  of  an  accident  may  be 
part  of  the  res  gestae.     G.  &  C.  U.  R.  R.  Co.  v.  Fay,  16  111.  558. 

The  existence  of  a  common  design  may  be  part  of  the  res  gestce. 
Main  v.  McCarty,  15  111.  441. 


Chap.  II.]  TEE  LAW  OF  EVIDENCE.  55 

The  books  of  a  third  party  may  be  admitted  when  part  of  the 
res  gestw  (e.  g.,  to  show  delivery).  C.  cG  A7.  Ry.  Co.  v.  Ingersol, 
€5  111.  399. 

Letters  which  are  part  of  the  res  gestae  may  be  admitted. 
Laurence  v.  Laurence,  164  111.  367;  Carter  v.  Carter,  152  111.  434: 
Wineberg  v.  Nessel,  56  111.  App.  136. 

In  a  personal  injury  case,  the  speed  of  the  train  and  the  fact  of 
ringing  a  bell  are  admissible  as  part  of  the  res  gestae.  Chicago 
Q.  T.  Ry.  Co.  v.  Kinnare,  76  111.  App.  394. 

Statements  of  agents. —  The  statements  of  an  agent  may  come  in 
as  res  gestae.  Suvimers  v.  H.  8.  B.  &  Co.,  50  111.  App.  382;  Pickett 
v.  Madison  County,  14  Brad.  454. 

Declarations  of  an  agent  while  performing  acts  within  the  scope 
of  his  duty  are  admissible.  Matzenbaugh  v.  People,  194  111.  108, 
62  X.  E.  546. 

The  declarations  of  officials  while  doing  acts  in  behalf  of  a  cor- 
poration are  part  of  the  res  gestae.     Maher  v.  Chicago,  38  111.  266. 

Evidence  of  what  the  flagman  did  and  said  at  the  time  of  the 
accident  may  be  competent  as  part  of  the  res  gestae.  Penn.  Co.  v. 
Rudel,  100  111.  603. 

The  mere  fact  that  an  agent  makes  an  exclamation  while  doing 
his  duty  does  not  prove  that  it  is  within  the  scope  of  his  duty. 
MogJc  v.  Chicago  St.  Ry.  Co.,  80  111.  App.  411. 

As  to  declarations  of  an  agent  after  the  act,  see  D.  &  H.  Canal  Co. 
v.  Mitchell,  92  111.  App.  577;  Druecker  v.  Sandusky  Portland  Cement 
Co.,  92  111.  App.  406. 

Rape. — -In  rape  cases  the  fact  of  complaint  may  be  shown. 
Stevens  v.  People,  158  111.   111. 

Attending  physicians  may  testify  as  to  statements  indicating 
sufferings  and  sensations.  Salem  v.  Webster,  192  111.  369,  61  X.  E. 
323,  affirming  P5  111.  App.   120. 

A  physician  present  at  the  time  of  an  accident  may  testify  as 
to  exclamations  of  pain.  Salem  v.  Webster,  192  111.  369,  61  X.  E. 
323,  affirming  95  111.  App.   120. 

Expression  of  pain  and  declarations  made  at  the  time  of  a  trans- 
action, or  to  a  physician  thereafter,  are  admissible.  West  Chicago 
St.  Ry.  Co.  v.  Carr,  170  111.  478,  48  X.  E.  992,  affirming  67  111.  App. 
530. 


56  A  DIGEST  OF  [Pabt  I. 

Statements  to  a  physician  making  an  examination  with  a  view 
to  suit  are  not  admissible,  unless  the  examination  was  made  by 
procurement  of  the  opposite  party.  West  Chicago  St.  Ry.  Co.  v. 
Carr,  170  111.  478,  48  N.  E.  992,  affirming  G7  111.  App.  530. 

Mere  exclamations  of  pain  the  morning  after  the  injury  are  inad- 
missible. West  Chicago  St.  Ry.  Co.  v.  Kennelly,  170  111.  508,  48 
N.  E.  996,  affirming  66  111.  App.  244. 

A  physician  may  testify  as  to  complaints  when  they  are  part  of 
the  res  gestae.  West  Chicago  St.  Ry.  Co.  v.  Kennelly,  170  111.  508, 
48  N.  E.  996,  affirming  66  111.  App.  244. 

Statements  of  one  who  is  injured,  to  be  admissible,  must  have 
been  made  at  the  time  of  the  accident.  C.  W.  D.  Ry.  Co.  v.  Becker. 
128  111.  548;  C,  B.  &  Q.  R.  R.  Co.  v.  Johnson,  36  111.  App.  565. 

In  a  personal  injury  action,  the  statements  of  the  victim  at  the 
time  of  the  injury  as  to  the  nature  of  the  injury  are  admissible. 
Springfield  Consolidated  Ry.  Co.  v.  Hoeffner,  175  111.  634,  51  X.  E. 
884,  affirming  71  111.  App.  102. 

New  Jersey. 

Statements  accompanying  act. —  Contemporaneous  writings  and 
statements  explaining  evidential  acts  are  also  admissible.  Luse  v. 
Jones,  39  N.  J.  L.  707;  Frome  v.  Dennis,  45  N.  J.  L.  515. 

Statements  in  one's  presence. —  A  statement  accusing  another  of 
homicide,  made  in  his  presence,  under  circumstances  rendering  a 
reply  expedient  and  proper  is  admissible,  as  also  is  the  silence  of 
the  accused.     Donnelly  v.  State,  26  N.  J.  L.  601. 

Conversations  in  the  presence  of  the  defendant  admissible  against 
him.    State  v.  Brown,  04  N.  J.  L.  414. 

Purpose  on  leaving  home.—  When  an  act  is  part  of  the  res  gestae 
statements  explanatory  thereof  and  concomitant  therewith  are  ad- 
missible. Oral  and  written  statements  made  on  leaving  home  as  to 
purpose  and  place  of  going  admitted.  Hunter  v.  Slate,  40  X.  J.  L. 
495. 

Conduct  while  making  a  declaration. —  The  conduct  of  a  person 
while  making  a  dying  declaration  is  admissible  on  the  question  of 
credibility.     Donnelly  v.  State,  26  N.  J.  L.  465. 

Statements  to  physician. —  Declaration-  of  a  patient  as  to  his 
symptoms  made  to  his  physician,  not  for  purpose  of  treatment  but 
to  enable  the  physician  to  form  an  opinion  for  the  purpose  of  testi- 
fying, are  not  admissible  in  favor  of  the  declarant.     Con.  Traction  Co. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  57 

v.  Lambert  son,  60  N.  J.  L.  452 ;  D.,  L.  &  W.  R.  Co.  v.  Roalefs,  70  Fed. 
21. 

Complaints. —  The  rule  as  applied  to  rape  cases  supported.  State 
v.  Ivins,  36  N.  J.  L.  233. 

Maryland. 

Statements  accompanying  act. — The  true  character  and  purpose 
of  acts  may  be  proved  by  the  declarations  accompanying  them  in 
point  of  time.  McDowell  v.  Goldsmith,  6  Md.  319;  Robinson  v. 
State,  57  Md.  14;  Curtis  v.  Moore,  20  Md.  93;  New  Windsor  v. 
Stocksdale,  95  Md.   196. 

A  statement  by  a  person  as  to  his  purpose  in  going,  made  just 
before  boarding  a  train,  held  admissible  as  part  of  the  res  gesta?  in 
an  action  for  damages  against  the  railroad  company  for  his  death. 
B.  d  0.  R.  R.  Co.  v.  Chambers,  81  Md.  371. 

Complaint  in  rape. —  In  rape  cases  the  fact  of  complaint  may  be 
shown.     Parker  v.  State,  67  Md.  329. 

The  details  and  circumstances  of  the  rape  cannot  be  proved  by  the 
declarations  of  the  woman  made  after  the  injury.  Parker  v.  State, 
67  Md.  329. 

Narrative  of  past  events. —  A  narrative  of  past  events  is  inadmis- 
sible.    Robinson  v.  State,  57  Md.  14. 

In  breach  of  promise,  the  plaintiff  may  show  that  she  communi- 
cated the  fact  of  the  engagement  to  her  family.  Lewis  v.  Tapman, 
90  Md.  294. 

Statements  of  others.— Authority  on  the  rule  of  the  text  that 
statements  made  in  the  presence  of  one  are  admissible.  Friend  v. 
Hamill,  34  Md.  298,  308. 

Declarations  by  a  wife  in  her  husband's  presence  as  to  why  a  de- 
posit was  made  in  their  joint  names  are  admissible  on  the  question 
of  ownership.     Taylor  v.  Brown,  65  Md.  366. 

Pennsylvania. 

Statements  accompanying  acts. —  One's  statements  of  intention  at 
the  time  of  making  a  settlement  are  admissible.  Bennett  v.  Hether- 
ington,  16  S.  &  R.  193;  Jones  v.  Brownfield,  2  Pa.  55. 

Declaration  of  one  when  taking  possession  admitted  to  show  that 
the  possession  was  adverse.    Miles  v.  Miles,  8  W.  &  S.  135. 

Conversation  at  the  time  of  the  assignment  for  benefit  of  creditors 
held  admissible  to  show  that  certain  property  was  excluded.  Wan- 
ner v.  Landis,  137  Pa.  61. 


58  A  DIGEST  OF  [Part  I. 

Declarations  of  a  depositor  admitted  to  show  her  intention  in 
making  a  deposit  in  trust  for  another.  Merigan  v.  McGonigle,  205 
Pa.  321. 

Statements  of  a  prisoner  at  the  time  of  his  arrest  are  admissible. 
Rhodes  v.  Com.,  48  Pa.  39G. 

On  a  prosecution  for  murder  it  may  be  shown  that  deceased  had 
a  certain  ten-dollar  Confederate  note;  that  accused  after  the  mur- 
der had  such  a  note  in  his  possession  and  destroyed  it,  with  his 
declarations  at  the  time  of  destruction.     Com.  v.  Roddy,  184  Pa.  274. 

Where  the  issue  is  the  existence  of  a  lease,  notices  by  the  lessor  to 
his  employees  and  entries  in  his  books  showing  receipt  of  rent  are 
admissible.     Crooks  v.  Bunn,   136  Pa.  368. 

Narrative  of  past  events. —  A  narrative  of  past  events  is  inadmis- 
sible.    Cottison  v.  Coitison,  22  Pa.  375. 

Silence  in  the  face  of  accusation. —  Ettinger  v.  Com.,  98  Pa.  338. 

The  silence  of  an  accused  at  a  judicial  inquiry  into  his  guilt  in 
the  face  of  an  accusation  against  him  is  no  evidence  of  his  guilt. 
Com.  v.  Zorambo,  205  Pa.  109. 

Entries  in  a  book  to  which  plaintiff  had  constant  access  and  over 
which  he  had  control  are  admissible  against  him  on  the  ground  that 
lie  must  have  seen  them  and  did  not  protest.  Ryder  v.  Jacobs,  196 
Pa.  386. 

Article  9. 
facts  necessary  to  explain  or  introduce  relevant 

FACTS. 

Facts  necessary  to  be  known  to  explain  or  introduce  a 
fact  in  issue  or  relevant  or  deemed  to  be  relevant  to  the 
issue,  or  which  support  or  rebut  an  inference  suggested  by 
any  such  fact,  or  which  establish  the  identity  of  any  thing  or 
person  whose  identity  is  in  issue  or  is  or  is  deemed  to  be 
relevant  to  the  issue,  or  which  fix  the  time  or  place  at  which 
any  such  fact  happened,  or  which  show  that  any  document 
produced  is  genuine  or  otherwise,  or  which  show  the  rela- 
tion of  the  parties  by  whom  any  such  fact  was  transacted, 
or  which  afforded  an  opportunity  for  its  occurrence  or 
transaction,  or  which  are  necessary  to  be  known  in  order  to 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  59 

show  the  relevancy  of  other  facts,  are  deemed  to  be  rele- 
vant in  so  far  as  they  are  necessary  for  those  purposes  re- 
spectively. 

Illustrations. 

(a)  The  question  is,  whether  a  writing  published  by  A  of  B  is 
libellous  or  not. 

The  position  and  relations  of  the  parties  at  the  time  when  the  libel 
was  published  may  be  deemed  to  be  relevant  facts  as  introductory  to 
the  facts  in  issue. 

The  particulars  of  a  dispute  between  A  and  B  about  a  matter  un- 
connected with  the  alleged  libel  are  not  deemed  to  be  relevant  under 
this  article,  +hough  the  fact  that  there  was  a  dispute  may  be  deemed 
to  be  relevant  if  it  affected  the  relations  between  A  and  B.27 

(b)  The  question  is,  whether  A  wrote  an  anonymous  letter,  threat- 
ening B,  and  requiring  B  to  meet  the  writer  at  a  certain  time  and 
place  to  satisfy  his  demands. 

The  fact  that  A  met  B  at  that  time  and  place  is  deemed  to  be  rele- 
vant, as  conduct  subsequent  to  and  affected  by  a  fact  in  issue. 

The  fact  that  A  had  a  reason,  unconnected  with  the  letter,  for  being 
at  that  time  at  that  place,  is  deemed  to  be  relevant,  as  rebutting  the 
inference  suggested  by  his  presence.28 

(c)  A  is  tried  for  a  riot,  and  is  proved  to  have  marched  at  the  head 
of  a  mob.  The  cries  of  the  mob  are  deemed  to  be  relevant,  as  ex- 
planatory of  the  nature  of  the  transaction.29 

id)  The  question  is,  whether  a  deed  was  forged.  It  purports  to  be 
made  in  the  reign  of  Philip  and  Mary,  and  enumerates  King  Philip's 
titles. 

The  fact  that  at  the  alleged  date  of  the  deed,  Acts  of  State  and 
other  records  were  drawn  with  a  different  set  of  titles,  is  deemed  to 
be  relevant.so 

(e)  The  question  is,  whether  A  poisoned  B.  Habits  of  B  known  to 
A,  which  would  afford  A  an  opportunity  to  administer  the  poison, 
are  deemed  to  be  relevant  facts.3l 

27  Common  practice. 

28  R.  v.  Barnard,  1758,  19  St.  Tri.  815.  &c. 

29iJ.  v.  Lord  George  Gordon,  1781,  21  St.  Tri.  514,  515,  520,  529, 
532,  &c. 

WLady  Ivy's  Case,  1684,  10  St.  Tri.  617,  618. 

31  R.  v.  Donellan,  1781,  Wills  Circ.  Ev.  241 ;  and  see  my  '  History 
of  the  Criminal  Law/  iii.  371. 


60  A  DIGEST  OF  [Part  I. 

(f)  The  question  is,  whether  A  made  a  will  under  undue  influence. 
His  way  of  life,  and  relations  with  the  persons  said  to  have  influenced 
him  unduly,  are  deemed  to  be  relevant  facts.32 

AMERICAN  NOTE. 

General. 

Authorities. —  Underhill  on  Evidence,  sees.  186,  215,  375;  Abbott's 
Trial  Evidence  (2d  ed.),  p.  129;  State  v.  Witham,  72  Me.  531  (Iden- 
tity) ;  Dietsch  v.  Wiggins,  15  Wall.  (U.  S.)  540,  546;  Bank  v.  Ken- 
nedy, 17  Wall.  (U.  S.)  19,  24;  People  v.  Vernon,  35  Cal.  49,  95  Am. 
Dec.  1. 

Where  two  persons  bear  the  same  name,  facts  are  admissible  which 
tend  to  make  it  probable  that  one  of  them  and  not  the  other  entered 
into  the  contract  upon  which  the  suit  is  brought.  Jones  v.  Parker, 
20  N.  H.  81. 

Evidence  of  the  extravagance  of  the  accused  is  relevant  in  con- 
nection with  other  evidence  upon  the  question  of  whether  or  not  he 
was  guilty  of  embezzlement.    Hackett  v.  King,  8  Allen  (Mass.),  144. 

Evidence  of  the  expenditures  of  a  husband  is  relevant  upon  the 
question  of  whether  certain  articles  are  necessaries  for  his  wife. 
Raynes  v.  Bennett,  114  Mass.  424. 

Relation  of  the  parties. —  Roach  v.  Caldbeck,  04  Vt.  593 ;  Craig's 
Appeal,  77  Pa.  448;  Siberry  v.  State,  133  Ind.  677. 

In  connection  with  other  evidence. —  Evidence,  in  itself  inadmissi- 
ble, may  be  rendered  admissible  by  being  offered  in  connection  with 
other  evidence  which  is  admissible.  Gage  v.  Smith,  27  Conn.  75: 
State  v.  Stevens,  65  Conn.  93;  Plumb  v.  Curtis,  66  Conn.  154;  Can- 
ton v.  Burlington,  58  Conn.  283. 

Rebutting  evidence. —  Where  it  is  alleged  that  one  has  committed 
u  trespass,  and  evidence  is  introduced  that  he  was  at  the  place,  he 
may  show  in  rebuttal  that  he  was  there  for  another  purpose.  Prin- 
die  v.  Glover,  4  Conn.  2o'0. 

Evidence  received  on  rebuttal,  if  not  objected  to,  is  before  the  court 
for  any  legitimate  purpose.     Ailing  v.  Forbes,  68  Conn.  575. 

As  supporting  the  rule  of  the  text  as  to  rebutting  evidence,  see 
Morris  v.  Spofford,  127  Mass.  85. 

On  the  question  of  whether  a  burner  was  lighted,  evidence  that  on 
certain  other  occasions  it  was  not  lighted,  is  admissible  to  rebut  tes- 

32  Boyse  v.  Rossborough,  1857,  6  H.  L.  C.  42-58. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  61 

timony  that  there  was  a  custom  to  keep  it  lighted.  Wentworth  v. 
Eastern  R.  R.  Co.,  143  Mass.  248. 

Explanatory  facts. —  Authority  on  the  first  point  in  the  text. 
Hughes  v.  Gross,  160  Mass.  61,  43  N.  E  1031,  32  L.  R.  A.  G20;  Mar- 
tin v.  Stale,  104  Ala.  71. 

Identity. —  Com.  v.  Whitman,  121  Mass.  361;  Com.  v.  Irwin,  107 
Mass.  401;  McDonald  v.  Savoy,  110  Mass.  49;  Robinson  v.  Litchfield, 
112  Mass.  28;  Com.  v.  Bush,  112  Mass.  2S0;  Com.  v.  Snow,  116  Mass. 
47;  Com.  v.  Dorsey,  103  Mass.  412;  Com.  v.  Campbell,  155  Mass.  537. 

The  jury  may  find  that  "  Asahel  Moss,  2d,"  on  the  tax-books,  is 
meant  for  Asahel  Morse.     Litchfield  v.  Farmington,  7  Conn.  100. 

Where  a  bottle  of  beer  is  sent,  labelled  and  sealed,  by  express,  to 
an  assayer,  and  the  assayer  testifies  as  to  a  bottle  so  labelled,  there 
is  no  ground  of  exception  so  far  as  the  point  as  to  identity  of  the 
beer  is  concerned.     Com.  v.  Bentley,  97  Mass.  551. 

Testimony  of  the  witness  that  he  "  thought  "  the  person  accused 
was  the  offender  may  be  sufficient  identification.  Com.  v.  Munsey, 
112  Mass.  287. 

Testimony  that  the  offender  "  looked  pretty  near  like "  the  ac- 
cused, is  not  sufficient  identification.  Com.  v.  Snow,  14  Gray 
(Mass.),  385. 

Where  there  is  testimony  as  to  identification  by  voice,  the  accused, 
not  being  a  witness,  may  not  repeat  something  to  the  jury  in  rebuttal. 
Com.  v.  Scott,  123  Mass.  222.  See  also  Johnson  v.  Comm.,  115  Pa. 
369. 

A  witness  who  has  heard  the  defendant  talk  but  once,  may  testify 
as  to  identification  by  the  voice,  but  the  jury  may  be  instructed  not 
to  convict  upon  that  evidence  alone.  Com.  v.  Williams,  105  Mass. 
62;  Com.  v.  Hayes,  138  Mass.  185. 

Positive  direct  evidence  of  the  identity  of  the  accused  is  not  neces- 
sary if  the  jury  are  satisfied  of  the  fact.  Com.  v.  Cunningham,  104 
Mass.  545. 

Where  one  is  asked  who  did  a  certain  thing,  an  answer  "  that 
man"  (pointing  to  the  defendant)  is  proper.  Com.  v.  Whitman^ 
121  Mass.  361. 

Any  person  is  a  competent  witness  to  testify  as  to  the  identity  of 
persons,  things  or  handwriting.     Com.  v.  Sturtivant,  117  Mass.  122. 

Upon  the  issue  of  identity  the  appearance  of  a  person  two  yeaTS 
before  and  after  the  date  in  question  is  competent.  Com.  v.  Camp- 
bell, 155  Mass.  537. 


G2  A  DIGEST  OF  [Part  I. 

Fixing  time. —  It  is  admissible  to  prove  the  time  when  a  certain 
occurrence,  foreign  to  the  case,  took  place,  for  the  purpose  of  fixing 
by  it  the  time  when  a  certain  act,  within  the  case,  was  lone.  Quin- 
tard  v.  Corcoran,  50  Conn.  38. 

A  letter  cannot  be  introduced  to  establish  the  time  of  its  receipt. 
Com.  v.  Burns,  7  Allen   (Mass.),  540. 

Conversations,  in  order  to  be  admissible  to  fix  a  date,  must  have 
reference  to  something  which  tends  to  establish  it.  Fisk  v.  Cole,  152 
Mass.  335. 

Illustration  (g). —  See  Mut.  Life  Ins.  Co.  v.  Hillman,  145  U.  S.  285. 

New  Jersey. 

Circumstances  surrounding  testator. —  The  situation  and  surround- 
ings of  a  testator  are  admissible  to  enable  the  court  to  understand 
and  apply  the  will.  Griscom  v.  Evens,  40  N.  J.  L.  402;  Bur  nut  x. 
Burnet,  30  N.  J.  Eq.  595. 

Explanatory  maps. —  When  explanatory  maps,  not  original  evi- 
dence themselves,  are  admissible.     State  v.  Smith,  68  N.  J.  L.  609. 

A  contract  between  plaintiff  and  defendant's  intestate  unenforce- 
able because  not  in  writing  is  admissible  to  show  that  certain  service 
was  not  rendered  as  a  gift.     Gay  v.  Mooney,  Admr.,  67  N.  J.  L.  27. 

Maryland. 

Explanatory  facts. —  Divers  v.  Fulton,  8  G.  &  J.  202;  Keedy  v. 
Xewcomer,  1  Md.  241. 

When  a  letter  is  admissible  and  refers  to  a  certain  memorandum, 
the  memorandum  is  also  admissible  to  explain  the  letter.  Barney  v. 
Smith,  4  H.  &  J.  485. 

In  a  prosecution  for  causing  abortion  proof  as  to  the  character  of 
the  house  where  it  occurred  is  admissible.    Hays  v.  State,  40  Md.  633. 

Relation  of  the  parties. —  Where  a  young  woman  is  claiming  com- 
pensation against  the  estate  of  her  aunt  for  doryestic  services,  it  is 
proper  to  show  the  relation  existing  between  the  two  persons,  whether 
the  claimant  was  sent  to  school,  and  whether  the  aunt  employed 
other  servants.     Gill  V.  Donovan.  !)()  Md.  518. 

Letters  may  be  admissible  to  show  the  relation  of  the  parties. 
though  not  competent  evidence  to  prove  facts  stated  therein. 
Hardest  i/  v.  /7 arris,  19  Md.  317. 

Fixing  time. —  A  witness  may  use  an  irrelevant  transaction  for  the 
purpose  of  fixing  the  time  of  an  occurrence.  Goodhand  v.  Benton.  6 
G.  &  J.  481. 


Chap.  II.]  THE  LAW  OF  EVIDENCE.  63 

Illustration  (f).—  Griffith  v.  Diffenderffer,  50  Md.  466. 

Illustration  (p). —  Jones  v.  Jones,  45  Md.  144. 

In  rebuttal. — ■  Testimony  inadmissible  in  itself  may  be  admissible 
by  way  of  rebuttal.  Milburn  v.  State,  1  Md.  1 ;  Armstrong  v. 
Thruston,  11  Md.  148. 

Evidence  allowed  as  rebuttal  which  would  have  been  irrelevant 
alone.     Townshend  v.  Townshend,  6  Md.  295. 

Pennsylvania. 

Authorities  —  Explanatory  facts. —  Any  fact  which  forms  a  link 
in  a  chain  of  evidence  may  be  proved.  Johnston  v.  Warden,  3  Watts, 
101;  Geisse  v.  Dobson,  3  Whart.  34;  Haughey  v.  Strickler,  2  W.  &  S. 
411;  Wagenseller  v.  Immers,  97  Pa.  465;  Phila.  R.  Co.  v.  Henrice, 
92  Pa.  431. 

The  commission  of  a  burglary  by  the  defendant  is  admissible  to 
explain  why  an  officer  was  in  a  certain  house  where  he  was  killed  by 
defendant.     Com.  v.  Major,  198  Pa.  290. 

Books  given  in  evidence  to  explain  the  nature  of  a  partnership 
interest.     Thommon  v.  Kalbach,  12  S.  &  R.  238. 

A  written  contract  on  a  collateral  matter  was  received  for  ex- 
planatory purposes.     Taylor  v.  Battler,  179  Pa.  451. 

Where  defendants  accused  of  murder  set  up  an  alibi,  the  prosecu- 
tion may  explain  the  presence  of  the  accused  at  the  distant  place  by 
proof  that  they  rode  away  on  horses  belonging  to  a  certain  person 
who  found  his  horses  and  saddles  gone.     Com.  v.  Roddy,  184  Pa.  274. 

A  conversation  between  the  witness  and  a  third  person  is  admis- 
sible if  it  is  necessary  to  a  correct  understanding  of  relevant  facts. 
Harper  v.  Kean,  11  S.  &  R.  280. 

Identity  —  Udderzook  v.  Com.,  76  Pa.  340. 

Evidence  of  another  crime  may  be  given  to  prove  identity.  Goersen 
v.  Com.,  99  Pa.  388. 

Where  there  is  testimony  as  to  identification  by  voice,  the  accused, 
not  being  a  witness,  may  not  repeat  something  to  the  jury  in  re- 
buttal.    See  Johnson  v.  Com.,  115  Pa.  369. 

Relation  of  the  parties. —  Evidence  not  relevant  to  the  issue  is 
admissible  to  explain  how  the  issue  arose  and  the  relation  of  the 
parties  to  it.     Shuman  v.  Shuman,  27  Pa.  90. 

Declarations  to  show  the  relation  of  parties.  Postens  v.  Postens, 
3  W.  &  S.  127:  Koch  v.  Howell,  fi  W.  &  S.  350;  Kimmel  v.  McRight, 
2  Pa.  38:  Craig's  Appeal.  77  Pa.  448. 


64  A  DIGEST  OF  [Pabt  i. 

To  show  that  one  acted  as  agent  in  paying  money,  it  may  be  proved 
that  lie  was  a  man  of  little  property  himself.  Strimpfler  v.  Roberts, 
18  Pa.  283. 

Relations  of  testator  with  persons  said  to  have  used  undue  in- 
fluence may  be  shown.  Frew  v.  Clarke,  SO  Pa.  170;  Kenyon  v.  Ash- 
bridge,  35  Pa.  157. 

Rebuttal. —  Evidence  may  be  admissible  as  rebuttal  which  would 
not  have  been  admissible  in  itself.  Sidle  v.  Wallers,  5  Watts,  389; 
Webb  v.  Lees,  149  Pa.  13;  Reyenthaler  v.  Phila.,  160  Pa.  195:  Seltzer 
v.  Brundage,  17  Atl.  9. 

Inadmissible  evidence  received  without  objection  may  be  rebutted 
by  the  same  kind  of  evidence.  Baker  v.  Rorke,  14  Pa.  Co.  Ct.  35; 
McElheny  v.  Railroad  Co.,  147  Pa.  1.  See  McCarthy  v.  Scanlon,  176 
Pa.  262.     Contra,  Sicank  v.  Phillips,  113  Pa.  482. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  65 


CHAPTER    III. 

OCCURRENCES  SIMILAR  TO  BUT  UNCONNECTED  WITH  THE 
FACTS    IN    ISSUE,    IRRELEVANT    EXCEPT    IN    CERTAIN 

CASES. 

Article  10.* 

similar  but  unconnected  facts. 

A  fact  which  renders  the  existence  or  non-existence  of  any 
fact  in  issue  probable  by  reason  of  its  general  resemblance 
thereto  and  not  by  reason  of  its  being  connected  therewith 
in  any  of  the  ways  specified  in  articles  3-9  both  inclusive, 
is  deemed  not  to  be  relevant  to  such  fact  except  in  the  cases 
specially  excepted  in  this  chapter. 

Illustrations. 

(a)  The  question  is,  whether  A  committed  a  crime. 

The  fact  that  he  formerly  committed  another  crime  of  the  same 
sort,  and  had  a  tendency  to  commit  such  crimes,  is  deemed  to  be 
irrelevant.! 

(6)  The  question  is,  whether  A,  a  brewer,  sold  good  beer  to  B,  a 
publican.  The  fact  that  A  sold  good  beer  to  C,  D,  and  E,  other  pub- 
licans, is  deemed  to  be  irrelevant2  (unless  it  is  shown  that  the  beer 
sold  to  all  is  of  the  same  brewing). 3 


*  See  Note  VI. 

i  R.  v.  Cole.     1  Fhi.  Ev.  508   (said  to  have  been  decided  by  all  the 
Judges  in  Mich.  Term,  1810). 

ZHolcombe  v.  Hewson,  1810,  2  Camp.  391. 
3  See  Illustrations  to  Article  3. 

5 


66  .4.  DIGEST  OF  [Pabt  I. 


AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  52  and  53; 
Underhill  on  Evidence,  sec.  8;  Taylor  on  Evidence  ( Chamberlayne's 
9th  ed.),  p.  2571;  State  v.  Lapage,  57  N.  H.  245,  24  Am.  Rep.  69; 
Flagg  v.  Willington,  6  Me.  (6  Greenl.)  386;  Parker  v.  Poland  Pub. 
Co.,  69  Me.  173,  31  Am.  Rep.  262;  Dodge  v.  Haskell,  69  Me.  429; 
Eandley  v.  Call,  27  Me.  (14  Shep.)  35;  Staples  v.  Smith,  48  Me.  470; 
Ball  v.  Tribou,  42  Me.  192;  McLoon  v.  Spaulding,  62  Me.  315;  Tower 
v.  Rutland,  56  Vt.  28 ;  Keith  v.  Taylor,  3  Vt.  153 ;  Nones  v.  Northouse, 
46  Vt.  5S7;  Whitney  v.  Firsf  War.  .Banft,  55  Vt.  154,  45  Am.  Dec.  598; 
Harris  v.  Howard,  56  Vt.  695;  Phelps  v.  Conant,  30  Vt.  277;  Jones 
v.  A7.  Y.,  y.  5.  <£-  Jf.  R.  R.  Co.,  20  R.  I.  210,  37  Atl.  1033,  11  Am.  & 
Eng.  R.  Cas.  (N.  S.)  414,  3  Am.  Neg.  Rep.  496;  Hopkins  v.  Howard, 
20  R.  I.  394,  39  Atl.  519;  Agulino  v.  A7.  Y".,  A".  //.  d  H.  R.  R.  Co.,  21 
R.  I.  263,  43  Atl.  63,  6  Am.  Neg.  Rep.  199,  14  Am.  &  Eng.  R.  Cas. 
(N.  S.)  314;  Stone  v.  Pendleton,  21  R.  I.  332,  43  Atl.  643;  Leighton 
v.  Sargent,  31  X.  H.  (11  Fost.)  119,  64  Am.  Dec.  323;  True  v.  San- 
born, 27  N.  H.  (7  Fost.)  383;  Filer  v.  Peebles,  8  N.  H.  226;  Mead 
v.  Merrill,  33  N.  H.  437;  Z^OT/e  v.  Leighton,  22  N.  H.  (2  Fost.)  71,  53 
Am.  Dec.  231;  Sicampscott  Machine  Co.  v.  iraZ/ccr,  22  N.  H.  (2  Fost.) 
457,  55  Am.  Dec.  172;  Durkee  v.  India  Mut.  Ins.  Co.,  159  Mass.  514, 
34  N.  E.  1133;  Smith  v.  A7.  Y.  d  xY.  E.  R.  R.  Co.,  163  Alass.  569,  41 
N.  E.  110;  Elliott  v.  Lyman,  3  Allen  (Alass.),  110;  Kelliher  v 
Miller,  97  Alass.  71;  Howe  v.  n*ei/»ioH//i.,  155  Alass.  439,  29  N.  E. 
646;  Howe  v.  Whitehead,  130  Alass.  268;  Gahagan  v.  Boston,  etc., 
R.  R.  Co.,  1  Allen  (Alass.),  1S7,  79  Am.  Dec.  724;  Dana  v.  A'at.  Bank 
of  Republic,  132  Alass.  156;  Morris  v.  L'asJ  Haven,  41  Conn.  252; 
Chapman  v.  Champion,  2  Day  (Conn.),  101;  Hoa;ie  v.  77o?ue  Zns. 
Co.,  32  Conn.  21;  Gorharn  v.  Gorham,  41  Conn.  242;  Edwards  v. 
Corner,  35  Conn.  517;  Beach  v.  Catiin,  4  Day  (Conn.),  284;  #06- 
01ns  v.  Harvey,  5  Conn.  335;  Hoadley  v.  J/.  Seicard  &  Son  Co.,  71 
Conn.  640,  42  Atl.  997;  /ruin^r  v.  Shethar,  71  Conn.  434,  42  Atl.  25: 
Cunningham  v.  Fair  Haven  d  Westville  R.  Co.,  72  Conn.  244,  43 
Atl.  1047,  6  Am.  Xeg.  Rep.  427;  Anderson  v.  Cowles,  72  Conn.  335: 
State  Bank  v.  TVa^rr/iowse,  70  Conn.  76;  Boyd  v.  L7.  S.,  142  U.  S. 
450;  Cole  v.  Com.,  5  Gratt.  (Va.)  606;  McKay  v.  Russell,  3  Wash. 
378.  28  Pac.  908;  Barney  v.  Rickard,  157  U.  S.  352;  Wise  v.  Acker- 


Chap.  III.]  TEE  LAW  OF  EVIDENCE.  67 

man,  76  Md.  375;  Rockford  Gas-Light  Co.  v.  Ernst,  08  111.  App.  300; 
Lombar  v.  E.  Taicas,  80  Mich.  14;  Birmington  R.  Co.  v.  Alexander, 
93  Ala.  133;  District  of  Col.  v.  Amies,  107  U.  S.  519. 

Instances. —  Similar,  but  unconnected  accidents,  cannot  be  proved. 
Hubbard  v.  R.  R.  Co.,  39  Me.  506. 

The  question  is,  whether  A  sold  meat  improperly  slaughtered  and 
unwholesome. 

The  fact  that  A,  several  years  previous  to  the  sale  complained  of, 
had  sold  similar  meat  is  irrelevant.  True  v.  Sanborn,  27  N.  H.  (7 
Fost.)  383. 

The  question  is,  whether  there  was  sewer  gas  in  a  given  house, 
connected  with  a  public  sewer,  from  which  the  inmates  suffered. 

The  facts  that  the  inmates  of  two  other  houses,  situated  on  the 
same  street  and  connected  with  the  same  public  sewer,  did  not  per- 
ceive the  presence  of  sewer  gas  therein,  and  were  not  injuriously 
affected  by  it,  are  deemed  irrelevant.  Bateman  v.  Rutland,  70  Vt. 
500,  41  Atl.  500. 

The  fact  that  a  person  sold  proper  goods  to  A  does  not,  in  itself, 
tend  to  prove  that  he  sold  proper  goods  to  E,  and  is  inadmissible. 
Lake  v.  Clark,  97  Mass.  346. 

It  is  admissible  in  connection  with  the  fact  that  the  two  sets  of 
goods  were  alike.    Pike  v.  Fay,  101  Mass.  134. 

The  question  is  whether  A,  a  landlord,  was  liable  in  damages  to  B, 
his  tenant,  for  personal  injuries  sustained  by  reason  of  a  defect  in  a 
set  of  wooden  steps  belonging  to  the  tenement.  The  fact  that  C  had 
fallen  on  the  same  steps  in  the  same  manner,  before  the  accident  to  B, 
is  irrelevant.     Dean  v.   Murphy,  169  Mass.   413,  48  N.   E.  283. 

The  question  is,  whether  A  and  B  are  jointly  interested  in  trading 
in  cattle.  The  fact  that  A  and  B  were  jointly  interested  in  trading  in 
horses  is  irrelevant.     Farnum  v.  Farnum,  13  Gray   (Mass.),  508. 

In  an  action  involving  the  question  whether  a  certain  loom  attach- 
ment worked  successfully,  it  is  competent  to  show  that  it  worked 
properly  on  another  loom,  evidence  having  previously  been  introduced 
that  the  two  looms  were  alike.  The  similarity  of  the  looms  presented 
a  question  to  be  passed  upon  ultimately  by  the  jury.  Brierly  v.  Mills, 
128  Mass.  291. 

In  an  action  for  assault,  similar  assaults  cannot  be  proved. 
Mathews  v.  Terry,  10  Conn.  459. 

An  information  for  adultery  charged  a  single  act  of  adultery  in  a 
single  count.     Held,  that,  having  given  evidence  of  one  such  act,  the 


RS  A   DIGEST  OF  LI'akt  I. 

State  could  not  proceed  to  show  other  instances  of  the  same  crime 
committed  with  the  same  person  at  other  times  and  places.  State  v. 
Bates,  10  Conn.  373. 

A  judgment  in  a  civil  action  is  not  evidence,  conclusive  or  other- 
wise, of  tin;  fact  thereby  established,  in  a  subsequent  criminal  prosecu- 
tion against  one  of  the  parties,  in  which  the  same  question  is  again 
involved.    State  v.  Bradnack,  69  Conn.  212. 

On  the  trial  of  an  action  on  the  warranty  of  a  horse,  the  plaintiff, 
who  testified  in  his  own  behalf,  was  asked,  on  cross-examination,  how 
many  other  purchases  of  horses  he  had  made  in  the  last  twenty  years, 
and  tried  to  set  aside  on  the  ground  that  he  had  discovered  defects  in 
'hem.  Held,  to  be  inadmissible,  as  raising  an  outside  and  irrelevant 
Russell  v.  Cruttenden,  53  Conn.  564. 

The  question  is  whether  A  was  in  such  condition  as  to  require 
the  appointment  of  a  guardian  to  manage  her  estate.  The  fact 
that  A  had  been  very  imprudent  ten  years  or  more  before  the  filing 
of  the  petition  by  the  overseer  of  the  poor  is  irrelevant.  Hopkins 
v.  Howard,  20  R.  I.  394.  39  Atl.  519. 

The  question  is,  whether  A,  a  testator,  was  insane. 

Letters  of  ]>.  who  was  proved  to  be  insane,  offered  for  the  purpose 
of  showing  that  insane  persons  might  rationally  write  and  converse, 
are  irrelevant  <m  the  question  of  A's  sanity.  Ware  v.  Ware,  8  Me. 
'8  Greenl.)  42. 

rhe  question  is,  what  wages  A,  a  carpenter,  was  to  receive  per 
day. 

Evidence  of  what  wages  other  carpenters  received  in  other  towns 
in  another  State,  is  irrelevant.     ~Noyes  v.  Fitzgerald,  55  Vt.  49. 

Similar  crimes.— Under  Illustration   (a)   see  Dodge  v.  Haskell,  69 

Me.  429;   State  v.  Renton,  15  X.   II.   169,  174;   State  v.  Wentworth, 

37  X.  II.  197,  209;  Reed  v.  Spaulding,  42  X.  H.  114-124:  State  v.  La- 

.   !l.  245;   State  v.  Hopkins,  50  Vt.  316;   State  v.  Kelley, 

t.  531.  27  Atl.  -203.  36  Am.  Rep.  884.     The  fact  that  the  accused 

lias  committed   similar  frauds  or  crimes   is  incompetent.     Jordan  v. 

Osgood.    10!)   Mass.    157:    Costelo  v.   Crowell,    139  Mass.   588:    Com.  v. 

21    Pick,    i  Mass.)     522:   Com.  v.  Wilson,  2  Cush.    fMass.)     590; 

Com.  v.   Campbell,  7  Allen    (Mass.),  541,  83  Am.  Dec.  705;   Jordan 

v.  Osgood,  inn  Mass.   157;  Com.  v.  Jackson.  132  Mass.  16,  19,  44  Am. 

Rep.  299.   note;   Miller  v.   Curtis.   158  Mass.   129:   Janzen  v.  People, 

159  111.  440:  Boyd  v.  U.  8.,  142  U.  S.  450;  Shaffner  v.  Com.,  72  Pa. 

CO. 


Chap.  HI.]  THE  LAW  OF  EVIDENCE.  69 

Limitations  of  the  rule. —  In  Best's  Principles  of  Evidence  (Cham- 
berlayne's  5th  ed. ),  p.  48Sn,  it  is  said: 

"  The  grounds  of  the  rule  are,  therefore,  entirely  practical ;  viz. : 
(1)  to  prevent  multiplicity  of  collateral  issues,  confusing  the  jury 
and  acting  as  a  surprise  upon  the  parties;  (2)  to  provide  that  a  man 
shall  not  be  convicted  of  one  crime  by  evidence  that  he  has  committed 
another.  Hubbard  v.  R.  R.  Co.,  39  Me.  506.  This  being  the  case, 
there  may  be  said  to  exist  in  the  United  States,  a  strong  tendency 
to  limit  the  rule  in  civil  causes.  This  relaxation  appears  most  com- 
monly in  the  numerous  cases  where  the  necessary  proof  of  liability 
consists  in  strengthening  a  possible  into  a  probable  cause  by  elimi- 
nation of  all  complicating  circumstances ;  in  other  words,  by  estab- 
lishing the  desired  relation  of  cause  and  effect  through  the  inductive 
process  of  tracing  the  same  effect  through  a  variety  of  instances 
where  the  cause  for  which  legal  liability  is  claimed  is  the  only  con- 
stant force." 

Where  the  question  is  as  to  whether  certain  facts  were  the  result 
of  alleged  causes,  other  effects  of  the  causes  may  be  shown. 

The  following  cases  illustrate  the  limitations*  of  the  rule  of  the 
text : 

Value. —  On  questions  of  value,  evidence  as  to  similar  property  is 
relevant.  Norton  v.  Willis,  73  Me.  580;  Warren  v.  Wheeler,  21  Me. 
484;  Fogg  v.  Hill,  21  Me.  529;  Snoio  v.  B.  &  M.  R.  R.  Co.,  65  Me.  230; 
Thornton  v.  Campton,  18  N.  H.  20;  March  v.  R.  R.  Co.,  19  N.  H.  376; 
Concord  R.  R.  Co.  v.  Greely,  23  N.  H.  242;  Hoit  v.  Russell,  56  N.  II. 
559;  While  v.  R.  R.  Co.,  30  N.  H.  188;  Hildreth  v.  Fitts,  53  Vt.  684; 
demons  v.  demons,  68  Vt.  77;  Cross  v.  Wilkins,  43  N.  H.  332;  Mel- 
vin  v.  Bullard,  35  Vt.  268;  Haven  v.  County  Comrs.,  155  Mass.  467; 
Pierce  v.  Boston,  164  Mass.  92;  Lyman  v.  Boston,  164  Mass.  99;  Bow- 
ditch  v.  Boston,  164  Mass.  107;  Newsome  v.  Davis,  133  Mass.  343: 
Elmore  v.  Johnson,  143  111.  573;  Mayor  of  Baltimore  v.  Smith  Co., 
80  Md.  458;  St.  Louis,  etc.,  R.  Co.  v.  Clark,  121  Mo.  169.  But  the 
valuation  of  the  tax  assessors  is  irrelevant.  Concord  Land  <C-  Water- 
Power  Co.  v.  Clough,  69  N.  H.  609,  45  Atl.  565. 

Evidence  is  admissible  touching  the  value  of  the  same  property 
at  other  times,  and  that  of  similar  property.  Beach  v.  Clark,  51 
Conn.  200;  Freeman's  Appeal,  71  Conn.  708;  Abbott  v.  Wyse,  15 
Conn.  260.  And  evidence  of  its  selling  price  is  admissible.  Sanford 
v.  Peck,  63  Conn.  494. 

But  a  tax  assessment  is  inadmissible.  Martin  v.  N.  Y.  &  N.  E.  R.  R. 
Co.,  62  Conn.  331,  343,  25  Atl.  239. 


70  A  DIGEST  OF  [Takt  I. 

Evidence  of  the  value  of  real  estate  at  a  certain  date  is  relevant 
upon  the  question  of  its  value  about  a  year  later.     Freeman's  Appeal, 

71  Conn.  708. 

One  sent  by  the  plaintiff,  a  physician,  as  a  substitute  to  attend  the 
defendant,  testified  on  his  direct  examination  as  to  the  reasonable- 
ness of  the  plaintiff's  charges.  Held,  that  upon  his  cross-examination 
he  might  be  asked  whether  his  own  charges  for  the  same  services 
were  reasonable,  and  how  much  they  were.  Sayles  v.  Fitzgerald,  72 
Conn.  392. 

In  a  suit  by  an  attorney  for  fees  for  advice  and  trial  in  the 
Superior  Court,  having  testified  that  his  charges  were  reasonable, 
he  was  asked,  on  cross-examination,  what  his  customary  charges  per 
day  were  for  trying  cases  before  a  justice  of  the  peace.  Held,  no 
error  to  admit  the  question,  but  that  it  tended  to  furnish  a  legitimate 
standard  of  comparison.  Phelps  v.  Hunt,  43  Conn.  198.  See  also 
Robbins  v.  Harvey,  5  Conn.  341. 

The  opinion  of  an  expert  as  to  the  value  ol  other  land  in  the  vicinity 
is  irrelevant.    Beale  v.  Boston,  166  Mass.  53. 

In  order  to  render  the  selling  price  of  goods  admissible,  to  prove  the 
value  of  others,  the  similarity  of  the  two  lots  must  be  established. 
Haven  v.  County  Comrs.,  155  Mass.  467;  Berney  v.  Dinsmore,  141 
Mass.  42. 

But  an  unaccepted  offer  to  purchase  or  sell  is  irrelevant.  Winni- 
simmet  Co.  v.  Grueby,  111  Mass.  543;  Wood  v.  Ins.  Co.,  126  Mass.  316; 
Davis  v.  Charles  River  Branch  R.  R.  Co.,  11  Cush.  (Mass.)  506. 

And  the  valuation  of  an  assessor  is  irrelevant.  Thompson  v.  Bos- 
ton, 148  Mass.  387;  Anthony  v.  R.  R.  Co.,  162  Mass.  60,  37  N.  E.  780. 

A  witness  as  to  the  value  of  land,  before  expressing  an  opinion  as  to 
its  value,  should  show  that  he  is  familiar  with  sales  of  similar  prop- 
erty and  the  prices  paid  therefor.  Cochrane  v.  Commonwealth,  175 
Mass.  299,  56  N.  E.  610;  Phillips  v.  Marblehead,  148  Mass.  326,  19 
N.  E.  547. 

Highway  injuries. —  In  suits  for  injuries  on  the  highway,  evidence 
as  to  the  condition  of  the  road  about  the  same  time,  a  short  distance 
from  the  exact  spot,  is  admissible.     Kent  v.  Lincoln,  32  Vt.  591. 

Evidence  that  other  horses  had  been  frightened  at  the  same  obstacle 
is  admissible.  Darling  v.  Westmoreland,  52  N.  H.  401 ;  Crocker  v. 
McGregor,  76  Me.  282;  Gordon  v.  Boston,  etc.,  R.  R.  Co.,  58  N.  H.  396. 

In  suits  for  injuries  on  the  highway,  evidence  as  to  the  condition  of 
the  road  about  the  same  time,  a  short  distance  from  the  exact  spot, 
is  admissible.    Bailey  v.  Trumbull,  31  Conn.  581. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  71 

The  question  is,  whether  a  particular  place  in  the  roadbed  of  a 
street-railway  company  was  defective  and  in  need  of  repairs.  The  fact 
that  other  places  in  the  roadbed  were  in  want  of  repairs  is  deemed 
irrelevant.  Cunningham  v.  Fair  Haven  &  Westville  R.  R.  Co.,  72 
Conn.  244,  6  Am.  Neg.  Rep.  427,  43  Atl.  1047. 

Where  the  use  of  a  road  made  by  the  plaintiff's  intestate  was  other- 
wise than  passing  along  it  in  the  usual  way,  it  was  held,  that  the  court 
properly  charged  the  jury  that  the  fact  that  other  persons  had  passed 
and  repassed  for  several  years  over  the  highway  at  the  place  in  ques- 
tion without  accident,  was  not  evidence  that  the  town  had  performed 
its  duty  in  making  the  highway  reasonably  safe.  Lutton  v.  Vernon, 
62  Conn.  8. 

In  suits  for  injuries  on  the  highway,  evidence  as  to  the  condition 
of  the  road  about  the  same  time,  a  short  distance  from  the  exact 
spot,  is  admissible.     Collins  v.  Dorchester,  6  Cush.   (Mass.)   396. 

Negligence. —  Evidence  of  negligence  on  previous  occasions  is  not 
admissible  in  suits  for  negligence.  Parker  v.  Portland  Pub.  Co.,  69 
Me.  173,  31  Am.  Rep.  262.  See,  also,  Bremner  v.  Newcastle,  83  Me. 
415. 

A  party  cannot  show  that  he  was  not  negligent  upon  one  occasion, 
by  proving  that  he  was  careful  on  other  occasions.  Laufer  v.  Bridge- 
port Traction  Co.,  68  Conn.  475. 

It  is  a  general  rule  that  a  party  charged  with  negligent  conduct 
will  not  be  allowed  to  show  that  such  conduct  was  common  or  cus- 
tomary among  those  engaged  in  an  occupation  similar  to  his  own, 
or  among  those  placed  in  like  circumstances  and  owing  the  same 
duties.     Bassett  v.  Shares,  63  Conn.  43. 

Evidence  of  negligence  on  previous  occasions  is  not  admissible  in 
suits  for  negligence.  Robinson  v.  Fitchburg  &  W.  R.  R.  Co.,  7  Gray 
(Mass.),  92;  Maguire  v.  Middlesex  R.  R.  Co.,  115  Mass.  239;  Whit- 
ney v.  Gross,  140  Mass.  232;  Lane  v.  Boston  d  Albany  R.  R.  Co.,  112 
Mass.  455. 

Similar  contracts  inadmissible  to  show  the  making  of  a  like  con- 
tract.—  Loicenstein  v.  Lombard,  Ayres  &  Co.  (Sup.  1897),  45  N".  Y. 
Supp.  2S6.  58  N.  E.  44.  164  N.  Y.  324,  333. 

Illustration  (a). —  See  People  v.  Flanigan,  42  App.  Div.  318,  39 
N.  Y.  Supp.  101;  People  v.  Fitzgerald,  156  N.  Y.  253,  50  N.  E.  846, 
reviewing  20  App.  Div.  139;  People  v.  Freeman,  25  App.  Div.  583, 
50  N.  Y.  Supp.  984;  People  v.  McLoughlin,  150  N.  Y.  365,  386,  44 
N.  E.  1017;  People  v.  Drake,  10  N.  Y.  Cr.  31;  Coleman  v.  People, 
55  N.  Y.  81;   People  v.   CorUn,  56  N.  Y.  363;   People  v.   Oibbs,  93 


A  DIGEST  OF  [Part  I. 


N.  Y.  471;  People  v.  Sharp,  107  X.  Y.  427,  14  X.  E.  319,  1  Am.  St. 
Rep.  851;  People  v.  Doiding,  84  N.  Y.  480;  People  v.  Greeuwall,  108 
X.  Y.  301;  Phillips  v.  /-*eopZe,  57  Barb.  354;  People  v.  White,  14 
Wend.  Ill;  People  v.  Keepers  (Sup.),  8  X.  Y.  Cr.  140,  14  X.  Y. 
Supp.  60;  People  v.  Justices  of  Court  of  Spec.  Sessions,  10  Hun, 
158;  Boland  v.  People,  19  Hun,  80;  People  v.  Drake,  05  Hun,  331, 
20  X.  Y.  Supp.  228 ;  People  v.  Eurlburt,  92  Hun,  46,  30  X.  Y.  Supp. 
867;  People  v.  Dibble,  3  Abb.  Dec.  518,  5  Park.  Cr.  28;  Hall  v. 
People,  6  Park.  Cr.  671. 

New  Jersey. 

Illustration  (a). —  Commission  of  other  crimes  of  like  nature  not 
admissible  to  prove  that  defendant  would  be  likely  to  commit  the  one 
in  question.  Bullock  v.  State,  65  X.  J.  L.  557;  State  v.  Sprague,  64 
X.  J.  L.  419;  Ryan  v.  State,  60  X.  J.  L.  552;  Parks  v.  State,  50 
X.  J.  L.  573;  Meyer  v.  /S/aie,  59  X.  J.  L.  310;  State  v.  Raymond,  53 
X.  J.  L.  200;  Leonard  v.  Sta^e,  00  X.  J.  L.  8. 

Other  offenses  are  not  provable  merely  to  show  that  defendant 
would  be  likely  to  commit  a  crime.     Clark  v.  State,  47  X.  J.  L.  550. 

Actions  for  criminal  conversation. —  In  action  for  criminal  con- 
versation the  defendant  may  be  asked  on  cross-examination  aa  to 
intercourse  with  plaintiff's  wife  prior  to  her  marriage.  Foulks  v. 
Archer,  31  X.  J.  L.  58. 

Divorce. —  Antenuptial  incontinence  not  admissible  to  prove  su 
quont  adultery.     Hedden  v.  Heddcn,  21  X.  J.  Eq.  01. 

Burning  of  insured  buildings. — Evidence  that  five  years  previously 
insured  buildings  belonging  to  defendant  were  burned  not  admissible 
to  prove  that  defendant  set  fire  to  another  insured  building.  Stale 
v.  Raymond,  53  X.  J.  L.  260. 

Libel. — -In    lil>el,    other    publications    are    irrelevant.      Schenclc    v. 
-pen.  208,  213. 

Negligence  —  Dangerous  areaway. —  In  damage  suit  for  injury 
caused  by  falling  into  an  areaway,  the  defendant  may  not  show  that 
such  areas  as  this  were  common  and  that  more  than  10.000  people 
had  passed  this  one  every  year  without  accident.  Temperance  Hull 
Assn.  v.  Giles,  33  X.  J.  L.  260. 

Previous  intoxication. —  Evidence  as  to  whether  plaintiff  in  an 
action  for  damages  was  intoxicated  on  o^easions  previous  to  the 
injury  is  not  admissible.  Shelly  v.  Brunswick  Traction  Co.,  05 
N.  J.  L.  639. 

Value  of  land. —  Value  of  land  may  be  shown  by  proof  of  sales 
of  other  land  in  the  vicinity,  but  only  when  there  is  a  substantial 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  73 

similarity  between  the  properties.  Laing  v.  United  N.  J.  R.  &  C. 
Co.,  54  N.  J.  L.  576. 

Impossibility  of  selling  one  lot  of  standing  timber  is  no  evidence 
as  to  the  value  of  another  lot.    Wiley  v.  Railroad  Co.,  44  N.  J.  L.  247. 

To  show  value  in  condemnation  proceedings,  evidence  that  land 
near  by  has  been  offered  at  a  certain  price  is  not  admissible.  Mont- 
clair  Ry.  Co.  v.  Benson,  36  N.  J.  L.  557. 

Amount  of  damage. —  To  show  amount  of  damage  caused  by  a  rail- 
road to  land  it  is  not  competent  to  show  that  in  other  localities 
land  increased  in  value  because  of  proximity  to  the  road.  Railroad 
Co.  v.  Doughty,  22  N.  J.  L.  495. 

Incompetency  of  workman. —  To  show  incompetency  of  a  workman 
in  a  suit  brought  by  him  for  breach  of  contract  of  employment,  the 
defendant  is  not  limited  to  work  done  for  the  defendant.  Match  Co. 
v.  Swett,  61  N.  J.  L.  457. 

Other  similar  grants  and  conveyances  not  admissible.  I  itzgerald 
V.  Faunce,  46  N.  J.  L.  599. 

Rates  charged  by  other  insurance  companies  admitted.  Martin  v. 
Fire  Ins.  Co.,  42  N.  J.  L.  46. 

Maryland. 

Authority. —  Wise  v.  Ackerman,  76  Md.  375. 

Value. —  To  show  value  of  land,  evidence  of  the  prices  paid  for 
similar  land  near  by  within  a  short  time  is  admissible.  Baltimore 
v.  Smith,  80  Md.  458. 

Prices  obtained  for  the  land  at  previous  sales  are  admissible  to 
prove  its  present  value.     Baltimore  V.  Brick  Co.,  80  Md.  45S. 

In  action  for  breach  of  contract  to  buy  certain  goods,  evidence  of 
the  price  plaintiff  got  from  others  for  similar  goods  is  not  admissible. 
Eckenrode  v.  Chemical  Co.,  55  Md.  51. 

To  prove  value,  evidence  of  the  price  of  similar  goods  in  the  neigh- 
borhood is  admissible.     Williamson  v.  Dillon,  1  H.  &  G.  444. 

Value  at  a  different  place.—  Price  of  cotton  at  Baltimore  not  ad- 
mitted to  show  amount  of  loss  at  Bremen,  hazard  v.  Transportation 
Co.,  78  Md.  1. 

To  show  value  at  one  place  it  is  admissible  to  show  value  at  an- 
other.    Williamson  v.  Dillon,  1  H.  &  G.  444. 

Value  at  a  different  time. —  The  value  of  insured  goods  on  February 
23d  admitted  to  show  their  value  on  July  23d.  Insurance  Co.  v. 
Traub,  83  Md.  524. 


74  A  DIGEST  OF  [Pabt  I. 

Other  crimes. —  Evidence  of  prisoner's  being  armed  and  in  a  vicious 
humor  just  before  the  oifense  is  admissible  even  though  it  inci- 
dentally discloses  another  crime.     Kernan  v.  State,  65  Md.  253. 

Proof  of  other  crimes  is  not  generally  admissible.  Lamb  v.  State, 
66  Md.  285. 

To  show  innoceuce  one  cannot  show  that  on  other  occasions  he  had 
opportunities  to  violate  the  law  but  did  not  do  so.  Archer  v.  State, 
45  Md.  33. 

Other  fires. —  To  prove  that  a  fire  was  set  by  sparks  from  an  engine 
it  is  permissible  to  show  that  other  fires  have  been  set  by  sparks 
from  other  engines  of  the  railroad.  Annapolis  R.  Co.  v.  Gantt,  39 
Md.  115.  B.  &  8.  R.  Co.  v.  Woodruff,  4  Md.  254,  is  no  longer 
authority. 

Other  contracts. —  The  terms  of  other  similar  contracts  are  not 
admissible.     Kriete  v.  Myer,  01  Md.  558. 

Insanity  in  the  family. —  When  evidence  has  been  introduced  tend- 
ing to  show  that  a  testator  was  insane,  it  may  be  shown  that  other 
members  of  the  family  were  afflicted  in  similar  manner.  Berry  v. 
Safe  Deposit  Co.,  96  Md.  45. 

Custom  of  doing  things. —  The  custom  of  a  justice  of  the  peace 
in  relation  to  his  manner  of  drawing  up  deeds  is  not  admissible. 
PococJc  v.  Hendricks,  8  G.  &  J.  421. 

To  prove  the  number  of  acres  of  grain  put  in  by  a  person,  it  is  not 
permitted  to  prove  the  number  of  acres  he  commonly  put  in.  Keedy 
v.  Newcomer,  1  Md.  241. 

Pennsylvania. 

Res  inter  alios. —  Res  inter  alios  acta?  not  admissible.  Rose  v. 
Klincjer,  8  W.  &  S.  178;  Oram  v.  Rothermel,  98  Pa.  300. 

In  action  for  contract  price  of  gas  furnished,  the  prices  specified 
in  contracts  with  third  persons  are  immaterial.  Philadelphia  Co.  v. 
Park  Bros.,   138  Pa.  346. 

To  prove  that  defendant  had  epileptic  fits,  it  is  not  relevant  that 
his  child  has  such  fits.    Hall  v.  Com.,  12  Atl.  163. 

intoxication  of  the  prisoner  is  not  provable  by  the  condition  of  a 
companion  who  had  taken  the  same  number  of  drinks.  Com.  v. 
Cleary,  135  Pa.  64. 

Similar  dealings  with  other  firms  not  admissible.  Sharp  v.  Emmet, 
5  Whart.  288. 

Other  crimes. —  Evidence  of  other  crimes  not  admissible.  Com.  v. 
Mellert,  2  Woodw.  Dec.  342 ;  Com.  v.  Saulsbury,  152  Pa.  554. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  75 

Other  crimes  may  be  incidentally  referred  to  in  proving  a  con- 
federacy.    Com.  v.  Biddle  (No.  2),  200  Pa.  647. 

Another  crime  may  be  proved  incidentally,  as  when  the  defendant 
killed  one  of  the  officers  when  lie  was  arrested  for  the  crime  in  ques- 
tion.    Com.  v.  Biddle,  200  Pa.  647. 

Other  criminal  acts,  intended  to  prevent  conviction,  may  be  given 
in  evidence.     Cover  v.  Com..  8  Atl.  196. 

Under  illustration   (a)   see  Shaffner  v.  Com.,  72  Pa.  60. 

Other  crimes  may  be  relevant  if  they  show  the  same  general  pur- 
pose. Brown  v.  Com.,  76  Pa.  319;  Kramer  v.  Com.,  87  Pa.  299; 
Goersen  v.  Com.,  99  Pa.  388. 

Value  at  other  times  and  places. —  An  offer  to  purchase  is  not 
admissible  to  prove  value.     Xegley  v.  Lindsay,  67  Pa.  217. 

Value  at  a  different  place  not  admitted  to  show  amount  of  damage 
from  breach  of  contract,  because  circumstances  were  not  similar. 
Fessler  v.  Love,  48  Pa.  407 ;' Hill  v.  Canfield,  56  Pa.  454. 

Evidence  of  value  eight  years  before  is  too  remote.  Miller  v.  Water 
Co.,  148  Pa.  429. 

The  best  evidence  of  the  market  price  of  land  is  not  the  price  paid 
for  other  land  in  the  neighborhood.  Railroad  Co.  v.  Rose,  74  Pa. 
362.  Such  evidence  as  to  particular  sales  is  not  admissible.  Rail- 
road Co.  v.  Hiester,  40  Pa.  53;  Railroad  Co.  v.  Patterson,  107  Pa. 
401  :  Railroad  Co.  v.  Vance,  115  Pa.  325;  Railroad  Co.  v.  Ziemer,  124 
Pa.  560. 

Value  of  services  may  be  proved  by  prices  paid  for  similar  ser- 
vices.    Holman  v.  Fesler,  7  VV.  &  S.  313. 

Other  fires  set  by  sparks. —  To  prove  that  a  fire  was  caused  by 
sparks  from  an  engine,  it  may  be  shown  that  other  fires  occurred  that 
day  because  of  sparks  from  the  same  engine.  Thomas  v.  Railroad 
Co.,  182  Pa.  538. 

To  prove  that  a  barn  was  fired  by  sparks  from  an  engine  it  may 
be  shown  that  it  was  common  for  sparks  to  set  fire  to  adjoining 
woods.  Railroad  Co.  v.  Stranahan,  79  Pa.  405;  Albert  v.  N.  Cent. 
R.  Co.,  98  Pa.  316. 

Miscellaneous. —  That  a  husband  turned  his  wife  out  once  is  no 
evidence  that  he  did  so  again.    Lentz  v.  Wallace,  17  Pa.  412. 

As  against  a  judgment  creditor  to  show  that  his  judgment  was  con- 
fessed by  fraud,  it  is  not  admissible  to  show  that  the  debtor  had 
confessed  another  judgment  for  fraudulent  purposes.  Miller  V.  Mc- 
Alister,  178  Pa.  140. 


76  A  DIGEST  OF  [Part  I. 

The  terms  of  previous  contracts  of  sale  between  the  parties  ad- 
mitted to  prove  the  terms  of  the  one  in  question.  Leiar  v.  Brown, 
15  Pa.  215;  Trego  v.  Lewis,  58  Pa.  463. 

To  prove  the  correctness  of  one  entry  in  a  book,  other  entries  in 
the  same  book  may  be  proved.     Young  v.  Com.,  28  Pa.  501. 

To  prove  that  a  note  was  raised  in  amount,  it  is  proper  to  admit 
a  card  showing  practice  work  in  the  alteration  of  figures.  Wheeler 
v.  Ahlers,  189  Pa.  138. 

Article  11.* 
acts  showing  intention,  good  faith,  etc. 

When  there  is  a  question  whether  a  person  said  or  did 
something,  the  fact  that  he  said  or  did  something  of  the 
same  sort  on  a  different  occasion  may  be  proved  if  it  shows 
the  existence  on  the  occasion  in  question  of  any  intention, 
knowledge,  good  or  bad  faith,  malice,  or  other  state  of  mind 
or  of  any  state  of  body  or  bodily  feeling,  the  existence  of 
which  is  in  issue  or  is  or  is  deemed  to  be  relevant  to  the 
issue ;  but  such  acts  or  words  may  not  be  proved  merely  in 
order  to  show  that  the  person  so  acting  or  speaking  was 
likely  on  the  occasion  in  question  to  act  in  a  similar  manner. 

4  Where  proceedings  are  taken  against  any  person  for 
having  received  goods,  knowing  them  to  be  stolen,  or  for 
having  in  his  possession  stolen  property,  the  fact  that  there 
was  found  in  the  possession  of  such  person  other  property 
stolen  within  the  preceding  period  of  twelve  months,  is 
deemed  to  be  relevant  to  the  question  whether  he  knew  the 

*  See  Note  VI. 

•*34  &  35  Vict.  c.  112,  s.  19  (language  slightly  modified).  This 
enactment  oyerrules  to  a  strictly  limited  extent  R.  v.  Oddy,  1851,  2 
Den.  C.  C.  264,  and  practically  supersedes  R.  v.  Dunn,  1826,  1  Moo.  C. 
C.  at  p.  150,  and  R.  v.  Davis,  1833,  6  C.  &  P.  177.     See  Illustrations. 


CiiAr.  III.]  THE  LAW  OF  EVIDENCE.  77 

property  to  be  stolen  which  forms  the  subject  of  the  pro- 
ceedings taken  against  him. 

If,  in  the  case  of  such  proceedings  as  aforesaid,  evidence 
has  been  given  that  the  stolen  property  has  been  found  in 
the  possession  of  the  person  proceeded  against,  the  fact  that 
such  person  has  within  five  years  immediately  preceding 
been  convicted  of  any  offence  involving  fraud  or  dishonesty, 
is  deemed  to  be  relevant  for  the  purpose  of  proving  that  the 
person  accused  knew  the  property  which  was  proved  to  be 
in  his  possession  to  have  been  stolen,  and  may  be  proved  at 
any  stage  of  the  proceedings :  provided  that  not  less  than 
seven  days'  notice  in  writing  has  been  given  to  the  person 
accused  that  proof  is  intended  to  be  given  of  such  previous 
conviction. 

The  fact  that  the  prisoner  was  within  twelve  months  in 
possession  of  other  stolen  property  than  that  to  which  the 
charge  applies,  is  not  deemed  to  be  relevant,  unless  such 
property  was  found  in  his  possession  at  or  soon  after  the 
time  when  the  proceedings  against  him  were  taken.5 

Illustrations. 

(a)  A  is  charged  with  receiving  two  pieces  of  silk  from  B,  knowing 
them  to  have  been  stolen  by  him  from  C. 

The  facts  that  A  received  from  B  many  other  articles  stolen  by  him 
from  C  in  the  course  of  several  months,  and  that  A  pledged  all  of 
them,  are  deemed  to  be  relevant  to  the  fact  that  A  knew  that  the  two 
pieces  of  silk  were  stolen  by  B  from  Cfi 

{b)  A  is  charged  with  uttering,  on  the  12th  December,  1854,  a 
counterfeit  crown  piece,  knowing  it  to  be  counterfeit. 

a  R.  v.  Carter,  1884,  12  Q.  B.  D.  522;  and  see  R.  v.  Drage,  1878, 
14  Cox,  C.  C.  85. 
OR.  v.  Dunn,  1826,  1  Moo.  C.  C.  146. 


78  A  DIGEST  OF  [Part  L 

The  facts  that  A  uttered  another  counterfeit  crown  piece  on  the 
11th  December,  1854,  and  a  counterfeit  shilling  on  the  4th  January, 
1855,  are  deemed  to  be  relevant  to  show  A's  knowledge  that  the  crown 
piece  uttered  on  the  12th  was  counterfeit.7 

(c)  A  is  charged  with  attempting  to  obtain  money  by  false  pre- 
tences, by  trying  to  pledge  to  B  a  worthless  ring  as  a  diamond  ring. 

The  facts  that  two  days  before,  A  tried,  on  two  separate  occasions, 
to  obtain  money  from  C  and  D  respectively,  by  a  similar  assertion  as 
to  the  same  or  a  similar  ring,  and  that  on  another  occasion  on  the 
same  day  he  obtained  a  sum  of  money  from  E  by  pledging  as  a  gold 
chain  a  chain  which  was  only  gilt,  are  deemed  to  be  relevant,  as  show- 
ing his  knowledge  of  the  quality  of  the  ring.8 

(d)  A  is  charged  with  obtaining  eggs  from  B  by  falsely  pretending 
that  he  was  carrying  on  a  real  business  as  a  farmer  or  dairyman. 

The  fact  that  on  subsequent  occasions  he  had  obtained  eggs  from 
C  and  D  by  mean3  of  the  same  pretence  is  deemed  to  be  relevant,  as 
Bhowing  that  he  was  not  carrying  on  a  real  business.9 

(e)  A  is  charged  with  obtaining  money  from  B  by  falsely  pretend- 
ing that  Z  had  authorised  him  to  do  so. 

The  fact  that  on  a  different  occasion  A  obtained  money  from  C  by 
a  similar  false  pretence  is  deemed  to  be  irrelevant,^  as  A's  knowl- 
edge that  he  had  no  authority  from  Z  on  the  second  occasion  had  no 
connection  with  hiB  knowledge  that  he  had  no  authority  from  Z  on 
the  first  occasion. 

(/)  A  sues  B  for  damage  done  by  a  dog  of  B's  which  B  knew  to  be 
ferocious. 

The  facts  that  the  dog  had  previously  bitten  X,  Y,  and  Z,  and  that 
they  had  made  complaints  to  B,  are  deemed  to  be  relevant. n 

{g)  The  question  is,  whether  A,  the  acceptor  of  a  bill  of  exchange, 
knew  that  the  name  of  the  payee  was  fictitious. 


t  R.  v.  Forstcr,  1855,  Dear.  456;  and  see  R.  v.  Weeks,  1861,  L.  &  C. 
18. 

««.  t.  Francis,  1874,  L.  R.  2  C.  C.  R.  128.  The  case  of  7?.  v. 
Cooper,  1875,  1  Q.  B.  D.  (C.  C.  R.)  19,  is  similar  to  R.  v.  Francis, 
and  perhaps  stronger. 

»R.  v.  Rhodes,  [1899],  1  Q.  B.  77.  See,  too,  R.  v.  Weill,  post,  p. 
55,  note  23. 

10  R.  v.  Bolt,  1860,  Bell,  C.  C.  280;  and  see  R.  v.  Francis,  uo.  sup. 
p.  130. 

11  See  cases  collected  in  Roecoe's  Nisi  Prius,  748. 


Chap.  HI.]  THE  LAW  OF  EVIDENCE.  79 


The  fact  that  A  had  accepted  other  bills  drawn  in  the  same  manner 
before  they  could  have  been  transmitted  to  him  by  the  payee,  if  the 
payee  had  been  a  real  person,  is  deemed  to  be  relevant,  as  showing 
that  A  knew  that  the  payee  was  a  fictitious  person.12 

(h)  A  sues  B  for  a  malicious  libel.  Defamatory  statements  made 
by  B  regarding  A  for  ten  years  before  those  in  respect  of  which  the 
action  is  brought  are  deemed  to  be  relevant  to  show  malice.!?- 

(i)  A  is  sued  by  B  for  fraudulently  representing  to  B  that  C  was 
solvent,  whereby  B,  being  induced  to  trust  C,  who  was  insolvent, 
suffered  loss. 

The  fact  that,  at  the  time  when  A  represented  C  to  be  solvent,  C, 
was  to  A's  knowledge  supposed  to  be  solvent  by  his  neighbours  and 
by  persons  dealing  with  him,  is  deemed  to  be  relevant,  as  showing 
that  A  made  the  representation  in  good  faith. 14 

(/)  A  is  sued  by  B  for  the  price  of  work  done  by  B,  by  the  order 
of  C,  a  contractor,  iipon  a  house,  of  which  A  is  owner. 

A's  defence  is  that  B's  contract  was  with  C. 

The  fact  that  A  paid  C  for  the  work  in  question  is  deemed  to  be 
relevant,  as  pr-oving  that  A  did,  in  good  faith,  make  over  to  C  the 
management  of  the  work  in  question,  so  that  C  was  in  a  position  to 
contract  with  B  on  C's  own  account,  and  not  as  agent  for  A.15 

(fc)  A  is  accused  of  stealing  property  which  he  had  found,  and  the 
question  is,  Avhether  he  meant  to  steal  it  when  he  took  possession  of  it. 

The  fact  that  public  notice  of  the  loss  of  the  property  had  been 
given  in  the  place  where  A  was,  and  in  such  a  manner  that  A  knew  or 
probably  might  have  known  of  it.  is  deemed  to  be  relevant,  as  showing 
that  A  did  not,  when  he  took  possession  of  it,  in  good  faith  believe 
that  the  real  owner  of  the  property  could  not  be  found. 1C 

(I)  The  question  is,  whether  A  is  entitled  to  damages  from  B,  the 
seducer  of  A's  wife. 

12  Gibson  v.  Hunter,  1794,  2  H.  Bl.  288. 

13  Barrett  v.  Long,  1851,  3  H.  L.  C.  395,  at  p.  114. 

14  Sheen  v.  Bumpstead,  1863,  2  H.  &  C.  193. 

15  Gerish  v.  Charlier,  1845,  1  C.  B.  13. 

16  This  illustration  is  adapted  from  Preston's  Case,  1851,  2  Den. 
C.  C.  353 ;  but  the  misdirection  given  in  that  case  is  set  right.  As 
to  the  relevancy  of  the  fact,  see  in  particular  Lord  Campbell's  remark 
on  p.  359. 


80  A  DIGEST  OF  [Past  1. 

The  fact  that  A's  wife  wrote  affectionate  letters  to  A  before  the 
adultery  was  committed,  is  deemed  to  be  relevant,  as  showing  the 
terms  on  which  they  lived  and  the  damage  which  A  sustained.17 

(m)  The  question  is,  whether  A's  death  was  caused  by  poison. 

Statements  made  by  A  before  his  illness  as  to  his  state  of  health, 
and  during  his  illness  as  to  his  symptoms,  are  deemed  to  be  relevant 
facts.  13 

(n)  The  question  is,  what  was  the  state  of  A's  health  at  the  time 
when  an  insurance  on  her  life  was  effected  by  B. 

Statements  made  by  A  as  to  the  state  of  her  health  at  or  near  the 
time  in  question  are  deemed  to  be  relevant  facts.  19 

(o)  The  question  is,  whether  A,  the  captain  of  a  ship,  knew  that 
a  port  was  blockaded. 

The  fact  that  the  blockade  was  notified  in  the  Gazette  is  deemed  to 
be  relevant.20 

AMERICAN  NOTE. 
General. 

(See  also  note  to  Article  12.) 

Authorities. —  Taylor  on  Evidence  (Chamberlayne's  9th  ed.),  p. 
257^;  Greenleaf  on  Evidence  (15th  ed.),  sec.  53,  note;  Abbott's  Trial 
Evidence,  p.  342;  Nichols  v.  Baker,  75  Me.  334;  Conant  v.  Leslie,  85 
Me.  257;  //ore?/  v.  Grant,  52  X.  H.  569;  Adams  v.  Kenney,  59  N.  H. 
133;  State  v.  Palmer,  65  N.  H.  216,  20  Atl.  6;  State  v.  McDonald,  14 
R.  I.  270;  State  v.  Fitzsimon,  18  R.  I.  236,  27  Atl.  446;  State  v. 
Ilabib,  18  R.  I.  558,  30  Atl.  462;  State  v.  Kelley,  65  Vt.  531;  Fratini 
v.  Caslini,  66  Vt.  273;  Limerick  Xat.  Bank  v.  Adams,  70  Vt.  133, 
40  Atl.  166;  State  v.  Hallock,  70  Vt.  159,  40  Atl.  51;  Bottomly  v. 
U.  8.,  1  Story  (U.  S.),  135,  143;  Kennan  v.  Gilmer,  131  U.  S.  22,  25; 
Lincoln  v.  Claflin,  7  Wall.  (U.  S.)  132,  138;  Butler  v.  Watkins,  13 
IVall.  (U.  S.)  457,  464;  Castle  v.  Bullard,  23  How.  Pr.  172,  1S6; 
pie  v.   Molineux,   168   X.  V.  264. 

The  second,  third,  and  fourth  paragraphs  of  the  text,  as  appears 
from  the  notes,  are  statutory  and  have  no  application  to  this  country. 

IT Trelavmy  v.  Coleman.  1S17,  1  B.  &  Aid.  90. 

18 R.  v.  Palmer,  1856.     See  my  'Hen.  View  of  Crim.  Law,'  pp.  238, 
256   (evidence  of  Dr.  Savage  and  Mr.  Stephens). 
w  Aveson  v.  Lord  Kinnaird.  1805,  6  Ea.  188. 
2"  Harrat  v.  Wise,  1829,  9  B.  &  C.  712. 


Cfap.  III.]  THE  LAW  OF  EVIDENCE.  81 

Intent. —  Com.  v.  Stoehr,  109  Mass.  3G5 ;  Com.  v.  Dearborn,  109 
Mass.  368;  Com.  v.  Kelley,  116  Mass.  341. 

A  is  charged  with  illegally  keeping  liquors  for  sale.  The  fact 
that  nearly  three  months  prior  to  the  complaint  and  seizure  in 
question  A  had  been  convicted,  on  a  plea  of  nolo  contendere,  of 
illegally  keeping  liquors,  is  relevant  to  show  intent.  State  V. 
Plunkett,  64  Me.  534. 

Upon  an  issue  of  whether  A,  by  the  use  of  fraudulent  representa- 
tion?, purchased  property  from  B,  the  fact  that  about  the  same  time 
of  the  transaction  in  question  A  had  fraudulently  dealt  with  B,  is  rele- 
vant.    Pierce  v.  Hoffman,  24  Vt.  525. 

Upon  the  question  of  whether  A.  a  depositor  and  client  of  a  bank, 
had  been  misused  or  wronged  by  B,  its  cashier,  the  fact  that  other 
depositors  had  been  misused  or  wronged  by  B  is  irrelevant.  Whit- 
ney v.  First  Nat.  Bank,  55  Vt.   154,  45  Am.  Dec.  598. 

Where  fraud  is  imputed,  a  considerable  latitude  must  be  allowed 
in  the  admission  of  evidence.  Hoxie  v.  Home  Ins.  Co.,  32  Conn.  37. 
See  Goodwin  v.  V.  8.  Annuity  Co.,  24  Conn.  602. 

If  an  insolvent  debtor  simultaneously  conveys  all  his  estate  by  sev- 
eral deeds  to  different  relatives,  all  the  deeds  are  admissible  to  raise 
a  presumption  of  fraud,  in  an  action  to  set  aside  any  one  of  them. 
Thomas  v.  Beck,  39  Conn.  243. 

In  an  action  of  trover  the  plaintiff  claimed  that  the  defendant  had 
conspired  with  other  persons  to  obtain  the  goods  in  question  from 
him  by  fraudulent  representations.  Held,  that  evidence  of  similar 
fraudulent  representations  by  the  same  parties  to  a  stranger,  made  in 
order  to  procure  goods  from  him,  was  admissible  to  show  the  character 
of  the  representations  made  to  the  plaintiff.  Luckey  v.  Roberts,  25 
Conn.  492. 

In  a  prosecution  for  keeping  liquors  with  intent  to  sell  the  same, 
the  State  offered  evidence  of  sales  made  by  the  defendant,  before  the 
date  of  the  alleged  offense.  Held,  that  it  was  admissible  on  the  ques- 
tion of  intent,  although  other  prosecutions  for  such  sales  were  pending 
against  him.    Slate  v.  Raymond,  24  Conn.  206. 

In  an  action  against  A,  B,  and  C,  for  a  conspiracy  to  defraud  such 
merchants  as  they  could,  by  representing  A,  who  was  a  bankrupt,  to 
be  a  man  of  large  property  and  safely  to  be  trusted,  evidence  is  ad- 
missible that  the  defendants  made  such  representations  to  certain 
third  parties,  in  consequence  of  which  the  latter,  without  the  request 

6 


82  J.  DIGEST  OF  [Part  I. 

of  the  defendants,  recommended  A  to  the  plaintiff,  whereby  he  was 
induced  to  give  him  credit.     Gardner  v.  Preston,  2  Day  (Conn.),  210. 

So  evidence  of  other  recent  forgeries  or  uttering*  by  the  defend- 
ant can  be  introduced  to  show  guilty  knowledge,  or  intent  on  a  trial 
for  forgery,  or  uttering  forged  instruments.  People  v.  Baird,  105 
Cal.  12G;  People  v.  Kemp,  70  Mich.  410;  Ansoii  v.  People,  148  111. 
494. 

In  civil  actions  guilty  knowledge,  or  fraudulent  purpose  can  be 
similarly  proved.  Lockicood  v.  Doane,  107  111.  235;  Lincoln  v. 
Claflin,    7    Wall.    132. 

To  prove  guilty  knowledge  on  the  part  of  receiver  of  stolen  goods, 
it  may  be  proved  that  he  had  before  received  stolen  goods  from  the- 
same  person.  State  v.  Ward,  49  Conn.  440;  Com.  v.  Johnson,  133 
Pa.  293;  Shriedley  v<~State,  23  O.  St.  130. 

It  is  not  necessary  that  the  goods  before  received  should  have  been 
stolen  from  the  same  person,  nor  be  of  the  same  character.  State  v. 
Ward,  49  Conn.  441,  442. 

Proof  of  a  combination  or  conspiracy  for  a  criminal  purpose  is  not 
often  made  by  direct,  open  and  positive  evidence,  but  more  generally 
and  more  naturally  by  proving  a  repetition  of  acts  of  a  character  con- 
ducing to  show  a  mutual  purpose.  In  such  cases  it  is  seldom  true  that 
any  one  act,  taken  by  itself,  can  be  detected  as  tending  to  prove  a 
combination,  but  when  it  is  seen  in  connection  with  other  acts,  its 
true  nature  may  be  discovered.  State  v.  Spalding,  19  Conn.  237.  See- 
also  Stalker  v.  Slate.  9  Conn.  341. 

Inadmissible  to  show  was  likely  to  so  act. —  As  authorities  for 
this  proposition  of  the  text,  see  State  v.  Bates,  10  Conn.  373:  Ed- 
wards v.  Warner,  35  Conn.  517:  Shaser  v.  State,  3G  Misc.  Rep.  429. 

A  is  charged  with  larceny.  The  fact  that  A  had  told  an  officer  of 
the  law.  in  the  course  of  conversation^,  much  concerning  other 
crimes  committed  by  him  is  irrelevant  to  show  that  A,  by  reason  of 
being  a  notorious  thief,  was  likely  to  steal  on  the  occasion  in  ques- 
tion.     Com.   v.    Campbell,    155   Mass.    537. 

Authorities  for  the  first  statement  of  text. —  Brum  v.  Bruen,  4 
Edw.  Ch.  040:  People  v.  Hopson,  1  Denio.  574:  Allison  v.  Matthieu, 
3  Johnson,  235;  Gary  v.  Hotailincj,  1  Hill,  311,  37  Am.  Dec.  323: 
Olmsted  v.  Eotailinfi.  1  Hill.  317:  Welsh  v.  Carter.  1  Wend.  185, 
19  Am.  Dec.  473;  Benham  v.  Gary,  11  Wend.  83;  Jackson  v.  Tim- 
merman,  12  Wend.  299:  Tloward  v.  Sexton,  4  X.  Y.  157:  Water- 
man v.  Whitney.  11  X.  Y.  157;  Zabriskie  v.  Smith,  13  N.  Y. 
322,    04  Am.    Dec.    551;     Hall    v.    Naylor,    18    X.   Y.  588.    75  Am. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  83 

Dec.  269;  Hcnnequin  v.  Naylor,  24  N.  Y.  139;  Hathome  v.  Hodyes, 
28  N.  Y.  486;  Copper  man  v.  People,  56  N.  Y.  591;  People  v.  Weed, 
56  N.  Y.  628;  Coleman  v.  People,  58  N.  Y.  555;  Swift  v.  Life  /ns. 
Co.,  63  N.  Y.  186;  IfiMer  v.  Barber,  66  N.  Y.  558;  Edington  v.  Life 
fr;s.    Co.,   67   N.  Y.    185;    Dilliber  v.   Li/e  Jns.   Co.,   69   N.   Y.   256. 

Similar  acts  (e.  g.,  gambling  transactions)  are  admissible  to 
prove  intent.  Gardner  v.  Meeker,  169  111.  40,  48  N.  E.  307,  affirm- 
ing Gardner  v.   Girtin,  69  111.  App.  422. 

Upon  an  issue  of  fraud,  prior  fraudulent  transactions  with  other 
parties  are  irrelevant.     Simpkins  v.  Berggren,  2   Brad.    101. 

Proof  in  forgery  of  the  passing  of  other  forged  papers  is  admis- 
sible to  show  scienter.     Steele  v.   People,  45   111.    152. 

Evidence  of  other  recent  forgeries  or  utterings  by  the  defendant 
can  be  introduced  to  show  guilty  knowledge  or  intent,  on  a  trial 
for  forgery  or  uttering  forged  instruments.  Anson  v.  People,  148 
111.   494. 

In  civil  actions  guilty  knowledge  or  fraudulent  purpose  can  be 
similarly   proved.     Lockwood  v.   Doane,    107    111.   235. 

The  statements  of  a  pauper  are  admissible  as  tending  to  show 
his   residence.     Dorr  v.   Seneca,   74   111.    101. 

Former  dealings  may  be  shown  upon  an  issue  of  intention. 
Jamieson  v.  Wallace,  166  111.  388. 

The  alteration  of  other  notes  by  the  defendant,  such  notes  being 
held  by  other  parties,  is  admissible.  Merritt  v.  Boyden,  191  III. 
136,  60  N.  E.  907,  affirming  93  111.  App.   613. 

New  Jersey. 

Authorities. —  Evening  Jour.  Assn.  v.  McDermott,  44  N.  J.  L.  430; 
Ellison  v.  Lindsley,  33  N.  J.  Eq.  258. 

Intent.—  On  trial  for  perjury  it  is  permissible  to  show  that  the 
witness  testified  to  immaterial  matters  falsely  for  the  purpose  of 
showing  intention  and  to  rebut  any  claim  of  mistake.  Dodge  v. 
State,  4  Zab.  456. 

Illustration  (b). —  To  prove  scienter  and  intent  in  passing  counter- 
feit money  other  crimes  of  the  sort  are  admissible.  State  v.  Van 
Houten,  Pen.  672;  State  v.  Robinson,  1  Harr.  507. 

Mutual  disposition.—  On  trial  for  adultery,  prior  acts  of  adultery 
between  the  same  parties  are  admissible  to  prove  their  mutual  dis- 
position. State  v.  Jackson,  05  N.  J.  L.  62;  State  v.  Snover,  65 
N.  J.  L.  289. 


84  A  DIGEST  OF  [Pakt  1. 

State  of  bodily  feeling. —  An  expression  of  present  suffering  or 
pain  is  a  part  of  the  res  gestae  and  is  admissible;  an  expression  as 
to  past  suffering  is  not.    State  v.  Gedicke,  43  N.  J.  L.  86. 

State  of  mind. — ■  The  existence  of  lawsuits  between  parties  is  ad- 
missible to  show  their  state  of  feeling.  State  v.  Zellcrs,  7  N.  J.  L. 
220. 

Facts  admitted  as  negativing  the  existence  of  a  certain  state  of 
mind  or  intention.     Schlemmer  v.  State,  51  N.  J.  L.  23. 

Forgery. — Alleging  intent  to  defraud  in  case  of  forgery.  G.  S. 
1895,  "  Criminal  Procedure,"  50. 

Evidence  of  passing  other  counterfeit  money  admissible  to  prove 
guilty  knowledge.  State  v.  Van  llouten,  2  Pen.  672;  State  v.  Robin- 
son, 16  N.  J.  L.  507. 

Maryland. 

Intent. —  Evidence  of  a  subsequent  attempt  to  cause  an  abortion 
by  different  means  is  admissible  to  show  intent  on  the  first  occasion. 
Lamb  v.  State,  06  Md.  285. 

The'  State  may  show  that  the  accused  in  a  trial  for  homicide  tried 
to  get  the  deceased  to  accompany  him  to  a  lonely  spot.  Garlitz  V. 
State,  71  Md.  203. 

Proof  of  other  similar  fraudulent  acts  is  admissible  to  show  intent 
to  cheat  and  defraud.     Bloomer  v.  State,  48  Md.  521. 

Proof  of  other  crimes  admitted  to  show  intent.  Bell  v.  State,  57 
Md.  108   (forgery)  ;  Lamb  v.  State,  66  Md.  285   (abortion). 

Malice. —  A  previous  assault  by  the  accused  on  the  deceased  is 
admissible  to  show  malice.     Williams  V.  State,  64  Md.  384. 

Forgery. —  To  prove  guilty  knowledge,  it  is  permissible  to  prove 
that  the  accused  had  in  his  possession  about  the  same  time  other 
forged  instruments.  Bloomer  v.  State,  48  Md.  521 ;  Bell  v.  State, 
57  Md.  10S;  Bishop  v.  State,  55  Md.  138. 

False  pretenses. —  In  a  prosecution  for  obtaining  property  by  false 
pretenses,  a  letter  of  the  defendant  showing  his  guilty  intent  is 
admissible  even  though  it  was  not  used  in  obtaining  the  property. 
Carncll  v.  State,  85  Md.  1. 

Fraud. —  To  show  intention  and  motive  in  cases  where  fraud  is 
involved  similar  acts  and  declarations  with  third  parties  are  admis- 
sible.    Friend  v.  Hamill,  34  Md.  298. 

To   prove  a   conspiracy  to  defraud,   it  may  be   shown  that  goods 


Chap.  III.]  TEE  LAW  OF  EVIDENCE.  85 

bought  by  one  were  offered  for  sale  by  another  below  cost.  Blum  v 
Slate,  94  Md.  375. 

Illustration  (o).—  Griffith  v.  Diffenderffer,  50  Md.  466. 

Character  of  an  act. —  Evidence  may  be  given  as  to  other  crimes 
when  they  form  part  of  the  same  transaction  and  characterize  the 
act  in  question.     Lamb  v.  State,  66  Md.  2S5. 

Authority  of  agent. —  To  show  that  an  agent  had  apparent  au- 
thority to  make  a  certain  contract,  evidence  showing  that  he  had 
had  authority  to  make  such  contracts  with  others  is  admissible. 
Bonaparte  v.  Clagett,  78  Md.  87. 

Pennsylvania. 

General  authorities. —  Sherwood  v.  Tit  man,  55  Pa.  77;  Kilrow  v. 
Com.,  89  Pa.  480;  Neel  v.  Potter,  40  Pa.  483;  Green,  etc.,  P.  Co.  v. 
Bresner,  97  Pa.   103. 

Intention. —  To  prove  that  a  misstatement  as  to  loss  was  inten- 
tional, other  such  misstatements  may  be  proved.  McSparran  v.  In- 
surance Co.,  193  Pa.  184. 

One  may  testify  as  to  his  intent  where  the  character  of  the  trans- 
action must  be  shown  by  it.     Bartley  v.  Phillips,  179  Pa.  175. 

Proof  of  other  crimes  admissible  to  show  motive  and  intent. 
Coersen  v.  Com.,  99  Pa.  388,  106  Pa.  477  (arsenical  poisoning)  : 
McConkey  v.  Com.,  101  Pa.  416;  Kramer  v.  Com.,  87  Pa.  299;  Com. 
v.\Shepherd,  2  Pa.  Dist.  345. 

In  trial  for  murder  of  a  wife  by  setting  fire  to  her  dress,  it  may 
be  shown  that  defendant  at  another  time  set  fire  to  her  dress.  Com. 
v.  Birriolo,  197  Pa,  371. 

After  the  doing  of  an  act  has  been  proved,  to  prove  that  a  certain 
person  did  it  a  prior  declaration  of  his  intention  to  do  it  may  be 
proved.     Dodge  v.  Bache,  57  Pa,  421. 

Evidence  of  one's  penurious  and  miserly  habits  is  admissible  to 
show  that  a  transfer  was  not  a  gift,     Hasel  v.  Beilstein,  179  Pa.  560. 

State  of  mind. —  A  letter  written  a  month  before  the  homicide 
admitted  to  show  the  state  of  defendant's  mind  toward  the  deceased. 
Com.  v.  Kransc,  193  Pa.  306. 

Bodily  condition. —  Statements  of  present  bodily  pain  are  admissi- 
ble as  part  of  the  res  gesto? ;  a  statement  as  to  past  suffering  is  not. 
Lichteniuallner  v.  Laubach,  105  Pa.  366. 

Guilty  knowledge. —  Other  instances  of  receiving  stolen  goods  are 
provable.      Com.   v.   Charles,   21    Pittsb.   Leg.   J.    11,    14   Phila.   663; 


86  A  DIGEST  OF  [Pabt  I. 

Com.  v.  Moorby,  8  Pliila.  615;  Com.  v.  Johnson,  133  Pa.  293;  Kilrow 
v.  Com.,  89  Pa.  480. 

Fraud. —  To  show  fraud,  evidence  of  similar  transactions  with 
other  persons  is  admissible.  Kauffman  v.  Swar,  5  Pa.  230;  Helfrich 
V.  Stern,  17  Pa.  143:  Evans  v.  Matson,  56  Pa.  54. 

To  identify  one  who  got  ;»  note  by  fraud,  it  is  permissible  to  show 
that  defendant  got  other  notes  from  other  persons  by  fraud.  Brown 
v.  Schock,  77  Pa.  471. 

Similar  fraudulent  representations  admissible  to  show  false  pre- 
tense.    Striker  v.  McMichael,  1  Phila.  89. 

Subsequent  misrepresentations  admitted  to  show  fraud.  Cum- 
min as  v.  Cummings,  5  W.  &  S.  553. 

Article  12.* 

facts  showing  system. 
When  there  is  a  question  whether  an  act  was  accidental 
or  intentional,  the  fact  that  such  act  formed  part  of  a  series 
of  similar  occurrences,  in  each  of  which  the  person  doing 
the  act  was  concerned,  is  deemed  to  be  relevant. 

Illustrations. 

(a)  A  is  accused  of  setting  fire  to  his  house  in  order  to  obtain 
money  for  which  it  is  insured. 

The  facts  that  A  had  previously  lived  in  two  other  houses  succes- 
sively, each  of  which  he  insured,  in  each  of  which  a  fire  occurred,  and 
that  after  each  of  those  fires  A  received  payment  from  a  different  in- 
surance office,  are  deemed  to  be  relevant,  as  tending  to  show  that  the 
fires  were  not  accidental^ 

*  See  Note  VI. 
21  R.  y.  Gray,  1866,  4  F.  &  F.  1102.  I  acted  on  this  case  in  R.  v. 
Stanley,  Liverpool  Summer  Assizes,  1882,  but  I  greatly  doubt  its  au- 
thority. The  objection  to  the  admission  of  such  evidence  is  that  it 
may  practically  involve  the  trial  of  several  distinct  charges  at  once, 
as  it  would  be  hard  to  exclude  evidence  to  show  that  the  other  fires 
were  accidental. —  See,  too,  Makin  v.  The  Attorney-General  for  New 


Chap.  III.]  7'UE  LAW  OF  EVIDENCE.  87 

(6)  A  is  employed  to  pay  the  wages  of  B's  labourers,  and  it  is  A's 
-duty  to  make  entries  in  a  book  showing  the  amounts  paid  by  him. 
He  makes  an  entry  showing  that  on  a  particular  occasion  he  paid 
,nore  than  he  really  did  pay. 

The  question  is,  whether  this  false  entry  was  accidental  or  inten- 
tional. 

The  fact  that  for  a  period  of  two  years  A  made  other  similar  false 
entries  in  the  same  book,  the  false  entry  being  in  favour  of  each  case 
in  A,  is  deemed  to  be  relevant.22 

(c)  The  question  is,  whether  the  administration  of  poison  to  A,  by 
Z,  his  wife,  in  September,  1848,  was  accidental  or  intentional. 

The  facts  that  13,  C,  and  D  (A's  three  sons),  had  the  same  poison 
administered  to  them  in  December,  1848,  March,  1849,  and  April, 
1849,  and  that  the  meals  of  all  four  were  prepared  by  Z,  are  deemed  to 
be  relevant,  though  Z  was  indicted  separately  for  murdering  A,  B,  and 
C,  and  attempting  to  murder  D.23 

(d)  A  promises  to  lend  money  to  B  on  the  security  of  a  policy  of 
insurance  which  B  agrees  to  effect  in  an  insurance  company  of  his 
choosing.  B  pays  the  first  premium  to  the  company,  but  A  refuses  to 
lend  the  money  except  upon  terms  which  he  intends  B  to  reject,  and 
which  B  rejects  accordingly. 

The  fact  that  A  and  the  insurance  company  have  been  engaged  in 
similar  transactions  is  deemed  to  be  relevant  to  the  question  whether 
the  receipt  of  the  money  by  the  company  was  fraudulent.24 

South  'Wales,  [1894],  A.  C.  57,  decided  after  the  author  had  written 
the  foregoing  note,  where  the  judgment  in  R.  v.  Gray  was  mentioned 
without  disapproval  in  the  judgment  of  the  Judicial  Committee ;  the 
decision  in  this  case  was  that  on  a  charge  of  murder  of  a  baby,  evi- 
dence of  children's  remains  being  found  on  premises  occupied  by  the 
accused  was  admissible. 

22/,'.  v.  Richardson,  1860,  2  F.  &  F.  343. 

23  7?.  v.  Geering,  1849,  18  L.  J.  M.  C.  215;  cf.  R.  v.  Garner,  1863 
3  F.  &  F.  681.  See,  too,  Makin  v.  The  Attorney-General  for  New 
South  Wales,  [1894],  A.  C.  57.  The  earlier  cases  were  discussed  in 
R.  v.  Neill  (or  Cream),  tried  at  the  Central  Criminal  Court  in  Octo- 
ber, 1892,  when  Hawkins,  J.,  admitted  evidence  of  subsequent  adminis- 
trations of  strychnine  by  the  prisoner  to  persons  other  than  and 
unconnected  with  the  woman  of  whose  murder  the  prisoner  was  then 
convicted.     See.  too,  R.  v.  Rhodes,  ante,  p.  63,  note  9. 

2<  Blake  v.  Albion  Life  Assurance  Society,  1878,  4  C.  P.  D.  94. 


88  A  DIGEST  OF  [Part  I. 

AMERICAN  NOTE. 

General. 

(See  also  notes  under  Article  11.) 

Authorities. —  1  Taylor  on  Evidence  ( Chamberlayne's  9th  ed. ), 
p.  257*5 ;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  53,  note;  Dearborn 
v.  Union  Nat.  Bank,  61  Me.  369;  Ossipee  v.  Grant,  59  N.  H.  70;  State 
v.  McDonald,  14  R.  I.  270;  McCasker  v.  Enright,  64  Vt.  488,  33  Am. 
St.  Rep.  938;  State  v.  Kelley,  65  Vt.  531;  Hoxie  v.  Home  Ins.  Co., 
32  Conn.  21,  85  Am.  Dec.  240;  Hawes  v.  State,  88  Ala.  37,  67;  State 
v.  Stice,  88  la.  27;  Dawson  v.  State,  32  Tex.  App.  535;  Goersen  V. 
Com.,  99  Pa.  388,  106  Pa.  477;  Wood  v.  U.  S.,  16  Pet.  342,  360; 
Bottomly  v.  U.  S.,  1  Story  R.  135,  143;  Friend  v.  Hamill,  34  Md. 
298,  306;  Com.  v.  McCarthy,  119  Mass.  354;  Com.  v.  Robinson,  146 
Mass.  571,  16  N.  E.  152;  Com.  v.  Eastman,  1  Cush.  (Mass.)  189,  48 
Am.  Dec.  595;  Com.  v.  Bradford,  126  Mass.  42. 

A  bought  a  vessel,  on  which  he  held  a  mortgage,  and  insured  it  with 
B.  The  vessel  was  lost  on  her  next  voyage,  and  A  brought  suit  on  the 
policy  of  insurance.  B  claimed  that  the  vessel  was  fraudulently  lost 
by  the  master's  misconduct,  to  which  A  was  privy,  and  that  the  insur- 
ance was  fraudulently  procured  with  intent  that  the  vessel  should  be 
lost.  The  fact  that  a  series  of  losses,  under  suspicious  circumstances, 
of  other  vessels  owned  by  one  of  the  same  owners,  and  mortgaged  in 
the  same  manner  to  A,  has  occurred,  is  relevant  to  show  that  the  loss 
of  the  vessel  in  question  was  not  accidental.  Hoxie  v.  Home  Ins.  Co., 
32  Conn.  21,  85  Am.  Dec.  240. 

So  to  show  that  ordinary  care  has  been  used  in  a  particular  in- 
stance the  usual  practice  of  others  in  the  same  business  or  employ- 
ment under  similar  circumstances  is  relevant.  Holland  v.  Tenn. 
Coal  Co.,  91  Ala.  444;  Reese  v.  Hershey,  163  Pa.  253;  Railioay  Co. 
v.  Manchester  Mills,  88  Tenn.  653;  Doyle  v.  St.  Paul,  etc.,  R.  Co., 
42  Minn.  79:   Whitsctt  v.  Chicago,  etc.,  67  la.   150. 

A  series  of  like  acts,  the  expression  of  a  system  of  conduct,  may 
be  shown  to  prove  habit,  etc.  Baulec  v.  2V.  Y.,  etc.,  R.  Co.,  59  N.  Y. 
356;  Lanpher  v.  Clark,  149  N.  Y.  472.  But  this  rule  must  be  lim- 
ited in  its  scope.  See  Wooster  v.  Broadicay,  etc.,  R.  Co.,  72  Hun, 
197;   Ross  v.  Ackerman,  46  N.  Y.  210:  cases  under  article  10. 

Illustration  (a). —  See  People  v.  Dimick,  107  N.  Y.  13;  Faucet  v. 
Nichols,  64  X.  Y.  383,  2  Wklv.  Dig.  332. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  89 

Illustration  (b). —  See  Rankin  v.  Blackwell,  2  Johns.  Cas.  198. 
Illustration  (c). —  See   Weyman  v.    People,   4   Hun,   511,   578,   62 
N.  Y.  623. 

Maryland. 

Authority.— friend  v.  Hamill,  34  Md.   298,  306. 

Evidence  showing  a  scheme  devised  by  the  defendant  for  obtaining 
goods  by  false  pretense  is  admissible.     Carnell  v.  State,  85  Md.  1. 

System  of  selling  liquor  by  seeming  to  give  it  away  admitted  to 
prove  intent.  Archer  v.  State,  45  Md.  33.  But  former  crimes  barred 
by  the  Statute  of  Limitations  cannot  be  proved.  World  v.  State,  50 
Md.  49. 

Pennsylvania. 

Authorities. —  Goersen  v.  Com.,  99  Pa.  388;  Swan  v.  Com.,  104 
Pa.  218;  Funk  v.  Ely,  45  Pa.  444. 

A  general  fraudulent  scheme  to  obtain  goods  by  falsely  represent- 
ing one's  credit  is  admissible.     White  v.  Rosenthal,  173  Pa.   175. 

To  show  collusion  between  a  minor  and  defendant  in  securing 
property  from  plaintiff  by  the  minor's  falsely  representing  his  age, 
other  similar  systematic  frauds  of  the  minor  are  admissible.  A>/f 
v.  Landis,  110  Pa.  204. 

So  as  to  show  that  ordinary  care  has  been  used  in  a  particular 
instance  the  usual  practice  of  others  in  the  same  business  or  employ- 
ment under  similar  circumstances  is  relevant.  Reese  v.  Hershey, 
163  Pa.  253. 

Article  13.* 

existence  of  course  of  business  when  deemed  to  be 
relevant. 

When  there  is  a  question  whether  a  particular  act  was 
done,  the  existence  of  any  course  of  office  or  business  ac- 
cording to  which  it  naturally  would  have  been  done,  is  a 
relevant  fact. 

When  there  is  a  question  whether  a  particular  person 

*  See  Note  VII. 


90  A  DIGEST  OF  [Part  I. 

held  a  particular  public  office,  the  fact  that  he  acted  in  that 
office  is  deemed  to  be  relevant.25 

When  the  question  is  whether  one  person  acted  as  agent 
for  another  on  a  particular  occasion,  the  fact  that  he  so 
acted  on  other  occasions  is  deemed  to  be  relevant. 

Illustrations. 

(a)  The  question  is,  whether  a  letter  was  sent  on  a  given  day. 
The  post-mark  upon  it  is  deemed  to  be  a  relevant  fact.26 

(b)  The  question  is,  whether  a  particular  letter  was  despatched. 
The  facts  that  all  letters  put  in  a  certain  place  were,  in  the  common 

course  of  business,  carried  to  the  post,  and  that  that  particular  letter 
was  put  in  that  place,  are  deemed  to  be  relevant.27 

( c)  The  question  is,  whether  a  particular  letter  reached  A. 

The  facts  that  it  was  posted  in  due  course  properly  addressed,  and 
was  not  returned  through  the  Dead  Letter  Office,  are  deemed  to  be 
relevant.28 

(d)  The  facts  stated  in  illustration  (d)  to  the  last  article  are 
deemed  to  be  relevant  to  the  question  whether  A  was  agent  to  the 
company  .29 

AMERICAN  NOTE. 

General. 

Authority. —  Abbott's  Trial  Evidence  (2d  ed.),  pp.  52,  237. 

Course  of  business. —  Union  Bank  v.  Stone,  50  Me.  595,  79  Am.  Dec. 
631;  Hall  v.  Brown,  58  N.  H.  93;  Bussard  v.  Levering,  6  Wheat.  102; 
Lindenbarger  v.  Bell,  6  Wheat.  104;  U.  S.  v.  Babcock,  3  Dillon  C.  C. 
(U.  S.)     571;   Knickerbocker  Ins.  Co.  v.  Pendleton,   115  U.  S.  539; 

-'  i  Ph.  Ev.  449;  Roscoe's  N.  P.  43;  Taylor,  s.  171. 
2"  K.  v.  Canning,  1754,  19    S.  T.  370. 

27  ITrthrrinoton  v.  Kemp,  1815,  4  Camp.  193;  and  see  Skilbeck  v. 
Garbett,  1845,  7  Q.  B.  846,  and  Trotter  v.  Maclean,  1879,  13  Ch.  Div. 
574. 

28  Warren  v.  Warren,  1834,  1  C.  M.  &  R.  250;  Woodcock  v.  Houlds- 
trorth,  1846,  16  M.  &.  W.  124.  Other  cases  on  this  subject  are  col- 
lected in  Roscoe's  Nisi  Prius,  p.  374. 

29  Blake  v.  Albion  Life  Assurance  Society,  1878,  4  C.  P.  D.  94. 


Chap.  III.]  THE  LAW  OF  EVIDENCE. ^  91 

Dunlop  v.  U.  S.,  165  U.  S.  486;  First  Nat.  Bank  v.  McMonigle,  69 
Pa.  St.  156;  State  v.  Taylor,  126  Mo.  531,  8  Am.  Rep.  236;  Dtoight 
v.  Brown,  9  Conn.  83. 

Holding  office.—  State  v.  Carroll,  38  Conn.  449,  9  Am.  Rep.  409; 
Bank  U.  S.  v.  Dandridge,  12  Wheat.  64,  70;  State  v.  Row,  81  la. 
138;  Golder  v.  Bressler,  105  111.  419,  428;  Fowler  v.  #eeoe,  9  Mass. 
231. 

Agency. —  Kent  v.  Tyson,  20  N.  H.  121;  Perry  v.  Dioelling-House 
Ins.  Co.,  67  N.  H.  291,  33  Atl.  731,  26  Ins.  L.  J.  120;  Austrian  &  Co. 
v.  Springer,  94  Mich.  343,  34  Am.  St.  Rep.  350;  Thurber  v.  Ander- 
son, S8  111.  167;  Gallinger  v.  Lafce  /Snore  Co.,  67  Wis.  529;  Putnam 
v.  Home  Ins.  Co.,  123  Mass.  324,  25  Am.  Rep.  93;  Doyle  v.  Corey, 
170  Mass.  337,  49  N.  E.  651;  Kellcy  v.  Lindsey,  7  Gray  (Mass.), 
287;  72oc/ie  v.  Ladd,  1  Allen   (Mass.),  436. 

Mailing  letter,  etc. —  Illustration  (c).  Huntley  v.  IFftittier,  105 
Mass.  391,  7  Am.  Rep.  536;  Munn  v.  Baldwin,  6  Mass.  316;  Hedden 
v.  Roberts,  134  Mass.  38;  Marston  v.  Bigelow,  150  Mass.  45,  22  N.  E. 
71,  5  L.  R.  A.  43 ;  Briggs  v.  Hervey,  130  Mass.  186 ;  Inhabitants  of  Au- 
gusta v.  Shepard,  21  Me.  (8  Shep.)  298;  La6re  v.  Sraifft,  62  N.  H. 
663;  Woodman  v.  Jones,  8  N.  H.  344;  Russell  v.  Buckley,  4  R.  I. 
525,  70  Am.  Dec.  167;  Oakes  v.  Weller,  16  Vt.  63;  Com.  v.  Kimball, 
108  Mass.  473;  tfoZh/  v.  Boston  Gaslight  Co.,  8  Gray  (Mass.),  123,69 
Am.  Dec.  233;  Briggs  v.  Hervey,  130  Mass.  187:  Rosenthal  v.  WaMcer, 
111  U.  S.  185;  Folsom  x.  Cook,  115  Pa.  St.  539;  HcFarland  v.  Acci- 
<to?i  Assn.,  124  Mo.  124. 

But  such  evidence  is  not  conclusive  proof  of  the  receipt  of  the 
letter.  Schutz  v.  Jordan,  141  U.  S.  213;  Harrington  v.  Hickman, 
148  Pa.  405.  Nor  is  like  evidence  conclusive  in  the  case  of  telegrams. 
U.  S.  v.  Babcock,  3  Dill.  571;  Eppinger  v.  Scott,  112  Cal.  369. 

The  question  is,  whether  a  particular  letter  reached  A.  The  fact 
that  it  was  the  usage,  at  a  hotel,  to  deposit  all  letters,  left  for  the 
guests,  in  an  urn,  whence  they  were  sent,  at  short  intervals  during  the 
day,  to  the  rooms  of  the  different  guests  to  whom  they  were  directed, 
is  deemed  to  be  relevant.      Dana  v.   Kemble,  19  Pick.    (Mass.)    112. 

The  question  is,  whether  a  letter  reached  A.  The  facts  that  B,  the 
alleged  sender,  took  a  copy  thereof  in  the  course  of  his  business,  and 
in  accordance  with  his  custom,  by  which  he  would  naturally  deposit 
the  letter  in  the  post-office,  directed  and  post-paid,  are  deemed  to  be 
relevant.     McKay  v.  Myers.  168  Mass.  312.  47  N.  E.  98. 

The  question  is,  whether  a  particular  telegram  reached  A. 


92  A  DIGEST  OF  [Part  I. 

The  facts  that  it  was  properly  addressed  and  deposited  in  the  tele- 
graph office,  with  the  charges  prepaid,  are  deemed  to  be  relevant. 
Com.  v.  Jeffries,  7  Allen  (Mass.),  548,  73  Am.  Dee.  712. 

The  question  is,  whether  a  notice  of  protest  was  sent  on  a  given  day. 
The  post-mark  of  the  office  where  it  was  mailed  is  deemed  to  be  rele- 
vant.   New  Haven  County  Bank  v.  Mitchell,  15  Conn.  206. 

The  question  is,  whether  notice  was  given  to  an  indorser  of  a  note 
upon  its  dishonor.  The  testimony  of  a  notary  public,  allege.,  to  have 
given  such  notice,  as  to  his  usual  course  of  proceeding  and  his  custom- 
ary habit  of  business,  in  regard  to  giving  notice,  is  deemed  to  be  rele- 
vant.    Union  Bank  v.  Stone,  50  Me.  595,  79  Am.  Dec.  631. 

In  order  to  entitle  a  party  to  the  benefit  of  the  presumption,  it 
must  be  shown  that  the  letter  was  mailed  properly  addressed,  and 
that  it  came  from  proper  custody.  Ward  v.  Hasbrouck,  60  N.  Y. 
Supp.  391,  44  App.  Div.  32. 

New  Jersey. 

Agency. —  The  fact  of  agency  may  be  proved  by  acts  and  conduct 
of  the  principal  and  agent.    Brahn  v.  Forge  Co.,  38  N.  J.  L.  74. 

Holding  office. —  Den.  v.  Pond,  Coxe,  379;  Brewster  v.  Vail,  Spen. 
56;  Conover  v.  Solomon,  Spen.  295;  Smith  v.  Perth  Amboy,  4  Harr. 
52;  Reeves  v.  Ferguson,  31  X.  J.  L.  107;  Gilbert  v.  Patterson,  32 
N.  J.  L.  177;  Gratz  v.  Wilson,  1  Hal.  419. 

One's  acting  as  constable  is  sufficient  evidence  of  his  authority. 
Stout  v.  flopping,  1  Hal.  125. 

Maryland. 

Holding  office. —  Proof  that  one  has  acted  in  a  public  capacity 
raises  the  presumption  that  he  had  authority.  Hanon  v.  State,  63 
Md.  123. 

Course  of  business. —  To  prove  the  existence  of  an  instrument,  a 
public  officer  may  testify  that  according  to  the  custom  of  his  office 
certain  entries  would  not  have  been  made  if  the  instrument  in  ques- 
tion had  not  been  produced.     Slate  v.  Mayor.  52  Md.  398. 

The  usual  custom  of  a  justice  of  the  peace  in  drawing  deeds  not 
admitted.    Pocock  v.  Hendricks,  S  G.  &  J.  421. 

Agency. —  Agency  may  be  proved  by  course  of  dealing.  Packing 
Co.  v.  Broirn.  S7  Md.  1. 

Mailing  letter. —  Evidence  that  a  letter  was  mailed  is  evidence 
that  it  was  received.  Phelps  v.  Georges  Creek  Co.,  60  Md.  536: 
Roberts  v.  Mattress  Co.,  46  Md.  374. 


Chap.  III.]  THE  LAW  OF  EVIDENCE.  93 

To  prove  receipt  of  a  letter,  it  may  be  shown  that  it  was  written, 
copied,  addressed,  and  prepared  for  mailing  according  to  the  usual 
course  of  business,  and  tbat  another  letter  placed  in  the  same  bunch 
was  duly  received  by  its  addressee.  Bank  v.  Raney  &  Co..,  11  Md. 
321 ;  Williams  v.  Brailsford,  25  Md.  126. 

Pennsylvania. 

Mailing  letter.— Illustration   (c).     Folsom  v.  Cook,  115  Pa.  539. 

Proof  of  a  letter  properly  addressed  and  mailed  is  prima  facie 
evidence  of  its  receipt.  But  it  is  rebuttable.  Mutual  Ins.  Co.  v. 
Toy  Co.,  97  Pa.  424;  Whitmore  v.  Insurance  Co.,  148  Pa.  405;  Jensen 
v.  McCorkell,  154  Pa.  323;  AlcSparron  v.  Insurance  Co.,  193  Pa.  184. 

"  Letters  properly  directed  and  duly  mailed  are  sufficient  evidence 
of  notice  of  the  dishonor  of  bills,  or  nonpayment  of  negotiable  notes/' 
Kenney  v.  Altvater,  11  Pa.  34;  Bank  v.  McMonigle,  69  Pa.  156. 

Course  of  business. —  First  Nat.  Bank  v.  McMonigle,  69  Pa.  156. 

Proof  of  uniform  course  of  business  between  two  parties  admitted 
to  show  that  there  was  no  liability  for  services  performed.  McCauVs 
Estate,  206  Pa.  506. 

Course  of  business  between  testatrix  and  beneficiary  admitted  to 
show  undue  influence.     Robinson  v.  Robinson,  203  Pa.  400. 

Acting  as  officer. —  That  one  acted  as  coroner  is  prima  facie  evi- 
dence that  he  was  commissioned  and  his  sureties  approved.  Young 
v.  Com.,  6  Binn.  88. 

Acting  as  bank  cashier  is  admissible  to  prove  his  appointment. 
Barrington  v.  Bank,  14  S.  &  R.  405. 

Acting  as  agent. —  Agency  proved  by  proof  of  acts  as  agent  with 
knowledge  of  principal.     Culver  v.  Ice  Co.,  206  Pa.  481. 


94  A  DIGEST  OF  [Part  I. 


CHAPTEE  IV. 

HEARSAY  IRRELEVANT  EXCEPT  IN   CERTAIN  CASES. 

Article  14.* 
hearsay  and  the  contents  of  documents  irrelevant. 

(a)  The  fact  that  a  statement  was  made  by  a  person  not 
called  as  a  witness,  and 

(&)  the  fact  that  a  statement  is  contained  or  recorded  in 
any  book,  document,  or  record  whatever,  proof  of  which  is 
not  admissible  on  other  grounds, 

are  respectively  deemed  to  be  irrelevant  to  the  truth  of 
the  matter  stated,  except  (as  regards  («•))  in  the  cases  con- 
tained in  the  first  section  of  this  chapter  ;x 

and  except  (as  regards  (&))  in  the  cases  contained  in  the 
second  section  of  this  chapter. 

Illustrations, 
(a)   A  declaration  by  a  deceased  attesting  witness  to  a  deed  that  he 
had  forged  it,  is  deemed  to  be  irrelevant  to  the  question  of  its  validity.2 


•  See  Note  VIII. 

1  It  is  important  to  observe  the  distinction  between  the  principles 
which  regulate  the  admissibility  of  the  statements  contained  in  a  docu- 
ment and  those  which  regulate  the  manner  in  which  they  must  be 
proved.     On  this  subject  see  the  whole  of  Part  II. 

ZBtobart  v.  Dryden,  1836,  1  M.  &  W.  615. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  95 

(b)  The  question  is,  whether  A  was  born  at  a  certain  time  and 
place.  The  fact  that  a  public  body  for  a  public  purpose  stated  that 
he  was  born  at  that  time  and  place  is  deemed  to  be  irrelevant,  the 
circumstances  not  being  sueh  as  to  bring  the  case  within  the  provi- 
sions of  Article  34.3 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  99;  Mc- 
Kelvey  on  Evidence,  p.  203. 

Hearsay  inadmissible. —  Authorities  on  the  first  clause  of  the  text. 
In  re  Hurlburi's  Estate,  68  Vt.  366,  35  Atl.  77;  Quinnam  v.  Quin- 
nam, 71  Me.  179;  Sidelinger  v.  Bucklin,  64  Me.  371;  Chapman  v. 
Tuntchell,  37  Me.  59,  58  Am.  Dec.  773 ;  Sheldon  v.  Robinson,  7  N.  H. 
157,  26  Am.  Dec.  726;  Rose  v.  Mitchell,  21  R.  I.  270,  43  Atl.  67; 
Amann  v.  Loicell,  66  Cal.  306,  5  Pac.  363;  Aiken  v.  Hodge,  61  111. 
436;  Bank  of  Monroe  v.  Gifford,  72  la.  750,  32  N.  W.  669;  Hipps  v. 
Wardle,  1  Atl.  (Pa.)  727;  Dobson  v.  Cochran,  34  S.  C.  518,  13  S.  E. 
679;  Edgell  v.  Francis,  66  Mich.  303,  33  N.  W.  501;  Sutherland  v. 
Round,  57  Fed.  Rep.  467,  6  C.  C.  A.  428,  16  U.  S.  App.  30;  Cook 
v.  Osborn,  2  Root  (Conn.),  31;  Baxter  v.  Camp,  71  Conn.  245,  41  Atl. 
803,  42  L.  R.  A.  514;  Brown  v.  Butler,  71  Conn.  576,  42  Atl.  654; 
Porter  v.  Ritch,  70  Conn.  235;  Allen  v.  Rundle,  50  Conn.  24;  Strong 
v.  Smith,  62  Conn.  43;  Benton  v.  Starr,  58  Conn.  288,  290;  McEin- 
non  v.  Norcross,  148  Mass.  533,  30  N.  E.  183;  Ryan  v.  Merriam,  4 
Allen  (86  Mass.),  77. 

Instances. —  The  question  is,  whether  A  made  a  promise  of  marriage 
to  B. 

The  declarations  of  A's  mother,  to  the  plaintiff,  B,  made  in  A's 
absence,  and  not  communicated  to  him,  are  deemed  irrelevant  either 
as  tending  to  prove  the  alleged  promise  on  the  part  of  A,  the  defend- 
ant, or  that  on  the  part  of  B.  Lawrence  v.  Cooke,  56  Me.  187,  96 
Am.  Dec.  443. 

The  declarations  of  deceased  persons,  who  had  means  of  knowledge 
and  were  disinterested,  are  deemed  irrelevant  in  relation  to  acts  of 
ownership  or  possession  on  the  part  of  A.  Wendell  v.  Abbott,  45 
N.  H.  349. 

a  Sturla  v.  Freccia,  1880,  5  App.  Cas.  623. 


96  A  DIGEST  OF  [Part  I. 

The  question  is,  what  was  the  boundary  line  between  the  property 
of  A  and  of  B,  and  what   was  the  location  of  a  certain  corner  therein. 

The  fact  that  on  a  survey  of  the  line  by  C,  a  witness,  the  plaintiff's 
brother,  D,  was  present,  and  did  not  object  to  his  taking  the  corner 
to  be  at  the  place  where  the  defendant,  B,  claimed  it  to  be,  is  deemed 
to  be  irrelevant  as  against  A,  the  plaintiff.  Johnson  v.  Prescott,  67 
N.  H.  597,  32  Atl.  775. 

The  question  is,  whether  a  warranty  that  a  horse  "  would  work 
well  "  had  been  broken. 

The  fact  that  a  horse  trainer,  not  called  as  a  witness,  had  offered 
to  subdue  the  horse  for  the  plaintiff,  A,  for  a  certain  sum,  but  that 
A  declined  to  employ  him,  is  irrelevant  and  hearsay.  Gates  V.  Moore, 
51  Vt.  222. 

The  question  is,  whether  an  injury  was  occasioned  by  A. 

The  reasons  given  by  guests  of  an  inn  for  leaving  it  when  offered 
in  testimony  as  declarations  to  B,  a  witness,  are  irrelevant  as  to 
the  question  in  controversy.  Wesson  v.  Washburn  Iron  Co.,  13  Allen 
(Mass.),  95,  90  Am.  Dec.  181. 

The  question  is,  how  a  certain  accident  happened,  whereby  A,  an 
employee,  was  injured. 

Testimony  of  a  conversation  with  B,  a  foreman,  in  which  B  told 
how  the  accident  to  A,  the  plaintiff,  happened,  is  irrelevant.  McKin- 
non  v.  Norcross,  148  Mass.  533,  20  N.  E.  183. 

The  question  is,  whether  A,  a  deceased  person,  was  insane. 

Evidence  of  what  his  widow,  B,  had  said  in  relation  to  his  insanity 
is  deemed  irrelevant.      Cook  v.  Osborn,  2  Boot   (Conn.),  31. 

The  question  is,  whether  a  reconveyance  of  land  from  B  to  A  was 
valid  as  against  C,  the  plaintiff  in  an  ejectment  suit  against  A. 

Declarations  of  B,  made  to  C  out  of  court,  showing  that  the  deed 
from  A  to  B  was  bona  fide,  being  intended  as  security  for  responsibili- 
ties incurred  by  B  for  A,  and  a  writing  of  defeasance  was  simul- 
taneously given  back  are  deemed  irrelevant.  Chapin  v.  Pease,  10 
Conn.  69,  25  Am.  Dec.  56. 

The  question  is,  whether  a  certain  dog  was  vicious  in  biting  A, 
who  brought  an  action  against  his  master,  B,  fo;  damages  resulting 
from  the  bite. 

The  fact  that  A,  upon  dropping  into  a  drowse,  would  jump  up  and 
call,  "  Take  him  off,''  that  the  dog  was  biting  him,  is  deemed  irrele- 
vant.    Plummer  v.  Richer,  71  Vt.  114,  41  Atl.  1045. 


Cuap.  IV.]  THE  LAW  OF  EVIDENCE.  97 

Written  hearsay  inadmissible. —  Authorities  on  the  second  clause 
of  the  text.  Kimball  v.  Hilton,  92  Me.  214,  42  Atl.  394;  Ordway  v. 
Haynes,  50  N.  H.  159;  State  v.  O'Brien,  7  R.  I.  336;  Hibbard  v.  Mills, 
46  Vt.  243;  Abel  v.  Fitch,  20  Conn.  90,  96;  Buckman  v.  Barnum, 
15  Conn.  67;  Allen's  Appeal,  69  Conn.  702,  708,  38  Atl.  701;  Ham- 
mond v.  Hammond  Buckle  Co.,  72  Conn.  130,  139,  44  Atl.  25;  Rora- 
back  v.  Pennsylvania  Coal  Co.,  58  Conn.  292;  Union  v.  Plainfield, 
39  Conn.  563;  Caron  v.  B.  d  A.  R.  R.  Co.,  167  Mass.  72;  Prescott  V. 
Ward,  10  Allen  (Mass.),  203;  Vicksburg,  etc.,  R.  Co.  v.  O'Brien,  119 
U.  S.  99;  Munshower  v.  &tofe,  55  Md.  11;  Kelley  v.  State,  82  Ga. 
441 ;  State  v.  Gee,  92  N.  C.  756. 

Instances. —  The  question  is,  what  were  the  terms  of  a  contract 
made  upon  a  particular  occasion  by  A,  the  agent  of  B,  with  C. 

A  letter  to  B,  from  A,  relative  to  the  contract  which  A  proposes 
to  make,  is  irrelevant  to  prove  the  contract,  being  a  mere  declaration 
out  of  court.     Sargent  V.  Wording,  46  Me.  464. 

In  a  suit  by  A,  for  the  alienation  of  his  wife's  affections,  the  ques- 
tion is,  why  B,  the  wife,  remained  away  from  her  husband,  A. 

A  declaration  and  petition  for  divorce  on  the  ground  of  adultery, 
offered  in  evidence  by  A,  are  irrelevant  when  B,  the  wife,  testifies 
that  she  left  him  be  ause  of  cruel  treatment,  but  does  not  claim  that 
she  stayed  away  because  of  unjust  charges.  Rose  v.  Mitchell,  21 
R.  I.  270,  21  R.  I.  (part  2)  60,  43  Atl.  67. 

The  question  is,  whether  A  was  employed  by  B,  a  corporation,  a9 
treasurer  and  general  manager. 

An  extract  from  the  annual  report  of  C,  president  of  this  corpora- 
tion, containing  a  statement  that  A  is  "  now  the  manager,"  is  irrele- 
vant.    Hammond  v.  Hammond  Buckle  Co.,  72  Conn.  130,  44  Atl.  25. 

The  question  is,  what  was  the  fair  cash  value  of  certain  shares  of 
stock. 

Quotations  in  newspapers,  obtained  from  persons  who  might  have 
been  summoned  as  witnesses,  are  deemed  irrelevant,  being  hearsay. 
National  Bank  of  Commerce  v.  New  Bedford,  175  Mass.  257,  56  N.  E. 
288.     See  Laurent  v.  Vaughn,  30  Vt.  90,  94,  95. 

The  question  is,  whether  A  or  B  owned  a  certain  scientific  cata- 
logue manuscript.  Letters  written  by  C  to  A,  the  plaintiff,  in  an 
action  of  replevin,  who  recognized  A's  ownership,  are  irrelevant  and 
hearsay.    Root  v.  Borst,  142  N.  Y.  62,  36  N.  E.  814. 

7 


98  A  DIGEST  OF  [Pabt  I. 

Entries  in  a  police  blotter  are  not  admissible  to  show  how  a  motor- 
man  acted  at  the  time  of  an  accident.  Kerr  v.  Metropolitan  St.  Ry. 
Co.,  55  N.  Y.  Supp.  1142,  57  N.  Y.  Supp.  794,  27  Misc.  Rep.  190. 

Letters  of  third  persons  are  mere  hearsay  and  inadmissible. 
Frank  v.  Brewer,  26  N.  Y.  St.  R.  590,  7  N.  Y.  Supp.  182;  Roth- 
child  v.  Schwarz,  59  N.  Y.  Supp.  527,  28  Misc.  Rep.  521;  Welsbach 
Commercial  Co.  v.  Popper,  59  N.  Y.  Supp.  1016;  O'Brien  v.  Gal- 
lagher, 57  N.  Y.  Supp.  250,  26  Misc.  Rep.  838. 

A  time  card  made  by  a  conductor  is  inadmissible  to  prove  when 
an  accident  occurred.  Lucas  v.  Metropolitan  St.  Ry.  Co.,  67  N.  Y. 
Supp.  833,  56  App.  Div.  405. 

Newspaper  accounts  are  not  evidence.  Child  v.  Sun  Mutual  In- 
surance Co.,  3  Sand.  26 ;  Downs  v.  New  York  Central  Railroad  Co., 
47  N.  Y.  83. 

Affidavit. —  An  affidavit  in  a  suit  is  hearsay  as  to  third  parties. 
Manning  v.  Bresnahan,  63  Mich.  584;  Cook  v.  Hopper,  23  Mich. 
511. 

New  Jersey. 

General  rule  excluding  hearsay.  Demoney  v.  Walker,  Coxe,  33; 
Curtis  v.  Aaronson,  49  N.  J.  L.  68;  Arata  v.  Sullivan,  63  N.  J.  L. 
46;  Trenton  Ins.  Co.  v.  Johnson,  4  Zab.  576;  Horner  v.  Leeds,  25 
N.  J.  L.  106;  McK ernan  v.  McDonald,  27  N.  J.  L.  541;  Stevens  v. 
Post,  12  N.  J.  Eq.  408. 

Hearsay  evidence  received  by  the  court  when  it  would  not  have 
been  admissible  before  a  jury.     State  v.  McDonald,  Coxe,  333. 

Statements  of  third  persons  admitted  to  fix  the  recollection  of  the 
witness.     State  v.  Fox,  25  N.  J.  L.  566. 

Reputation  in  issue. —  Hearsay  admissible  when  the  fact  to  be 
shown  is  notoriety.     Browning  v.  Skillrnan,  4  Zab.  351. 

Deceased  witness. —  Declarations  of  a  deceased  attesting  witness 
that  a  will  was  not  duly  executed,  notwithstanding  the  contrary 
presumption  arising  from  proof  of  his  signature  as  such  witness. 
held  admissible.  Church  v.  Ten  Eyck,  1  Dutch.  40;  affirmed  in 
Otteraon  v.  Hofford,  36  N.  J.  L.  129. 

Objecting  to  hearsay. —  Hearsay  evidence,  no  objection  to  its  ad- 
mission having  been  made,  held  sufficient  to  prove  that  W  was  agent 
of  defendant.    Smith  v.  Delaware  &  Atl.  T.  &  T.  Co.,  63  N.  J.  Eq.  93.  ' 

Instances. —  Declarations  of  a  testator  made  after  the  will  \n 
executed  are  hearsay.     Meeker  V.  Boylan,  28  N.  J.  L.  274. 

Statements  by  one  not  a  party  to  the  suit  claiming  an  interest  in 
property  and  denying  that  defendant  had  any  interest,  not  made  in 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  99 

the  presence  of  the  defendant,  are  not  admissible.  Hoyt  v.  Hoyt,  12 
C.  E.  Gr.  399. 

Statements  by  complainant  made  not  in  defendant's  presence  inad- 
missible as  against  defendant.     Smith  v.  McVeigh,  11  N.  J.  Eq.  242. 

The  fact  that  defendant  held  herself  oat  to  be  a  partner  cannot  be 
proved  by  statements  of  other  members  of  the  firm  that  she  had 
been  made  a  partner.     Carey  v.  Marshall,  67  N.  J.  L.  236. 

Agency  cannot  be  proved  by  the  declarations  of  the  agent.  Smith 
v.  Delaware  &  Atl.  T.  &  T.  Co.,  63  N.  J.  Eq.  93. 

Statements  in  Dun's  Commercial  Agency  report  are  mere  hearsay 
and  not  admissible  to  prove  statements  made  by  parties  to  the  re- 
porter.    Coicen  v.  Bloomberg,  60  N.  J.  L.  385. 

A  confession  of  a  particeps  criminis  in  adultery  is  not  admissible. 
Berckmans  V.  Berckmans,  16  N.  J.  Eq.  122. 

Written  hearsay. —  Railroad  Co.  v.  May,  48  N.  J.  L.  401. 


Maryland. 

General  rule  excluding  hearsay. —  Norwood  v.  State,  45  Md.  68 ; 
Herrick.  v.  Swomley,  56  Md.  439;  Smith  v.  Wood,  31  Md.  293;  Lee 
V.  Tinges,  7  Md.  215. 

Instances. —  Declarations  of  a  third  party  as  to  the  ownership  of 
property  is  hearsay.     Chelton  v.  Stale,  45  Md.  564. 

Statements  of  third  persons  not  in  the  presence  of  a  party  are  not 
admissible  against  him.     Sicartz  v.  Chickering,  58  Md.  290. 

One  cannot  prove  the  truth  of  a  fact  by  introducing  previous  state- 
ments of  his  own.     Williamson  v.  Dillon,  1  H.  &  G.  444. 

Declarations  of  a  witness  who  has  been  suddenly  taken  sick  are 
not  admissible  merely  on  the  ground  of  necessity.  Gaither  v.  Martin, 
3  Md.  146. 

Hearsay  as  to  the  position  of  a  building;  what  a  former  owner  said 
is  not  admissible.     Tome  Institute  v.  Davis,  87  Md.  591. 

To  show  that  one  acted  with  reasonable  prudence  or  in  good  faith, 
the  information  upon  which  he  acted  is  admissible,  even  though  it 
consists  of  statements  of  third  parties.    Friend  v.  Hamill,  34  Md.  308. 

Written  hearsay  inadmissible. —  Authorities  on  the  second  clause 
of  the  text.  Munshover  v.  State,  55  Md.  11:  Lewis  v.  Kramer,  3 
Md.  265. 

A  written  memorandum  by  one  now  deceased  not  made  in  the 
course  of  business  is  hearsay  and  not  admissible.  Tome  Institute  v. 
Davis,  87  Md.  591. 


100  A  DIGEST  OF  [Part  I. 

The  fact  that  a  letter  contained  a  certain  enclosure  cannot  be 
proved  by  statements  in  the  letter,  for  they  are  hearsay.  White- 
ford  v.  Burckmyer,  1  Gill,  127. 

Letters  as  hearsay. — ■  Kosenstock  v.  Tormey,  32  Md.   169. 

Voluntary  affidavits  are  on  the  same  basis  as  unsworn  statements 
of  third  parties.  Patterson  v.  Maryland  Ins.  Co.,  3  H.  &  J.  71. 
As  to  ex  parte  affidavits,  see  also  Insurance  Co.  v.  Carlin,  58  Md. 
336;  Kemp  v.  Insurance  Co.,  2  G.  &  J.  108;  Newson  v.  Douglass,  7 
II.  &  J.  417. 

Testimony  based  on  hearsay. —  If  testimony  is  based  wholly  upon 
information  derived  from  others,  it  is  hearsay  and  is  not  admissible. 
Merrick  v.  Swomley,  56  Md.  439;  Lewis  v.  Kramer,  3  Md.  265;  Lee 
v.  Tinges.  7  Md.  215  (the  correctness  of  an  account)  ;  Green  v.  Caulk, 
16  Md.  556. 

Ancient  facts. —  Very  ancient  facts,  written  evidence  of  which  can- 
not be  supposed  to  exist,  may  be  proved  by  hearsay.  Casey  v.  Inloes, 
1  Gill,  430. 

Pennsylvania. 

Hearsay  inadmissible. —  Authority  on  the  first  clause  of  the  text. 
Hipps  v.  Wardle,  1  Atl.  727. 

That  a  witness  had  notice  of  a  dissolution  of  a  partnership  at  a 
certain  time  is  not  admissible  to  prove  such  dissolution  at  that  time. 
Shaffer  v.  Snyder,  7  S.  &  R.  503. 

As  to  declarations  of  a  deceased  attesting  witness  that  notwith- 
standing his  signature  a  will  was  not  duly  executed,  see  Grouse  v. 
Miller,  10  S.  &  R.  155. 

Conversations  with  third  persons  are  not  admissible,  though  such 
third  person  himself  would  be  competent.  Corser  v.  Hale,  149  Pa. 
27  I  ■.  Johnston  v.  Patterson,  114  Pa,  398;  Evans  v.  McKee,  152  Pa.  89. 

Instances. —  Ex  parte  conversations.    Gordon  v.  Bowers,  16  Pa.  226. 

Telegram  from  a  third  person.     Cummings  v.  Gann,  52  Pa.  484. 

Statements  of  a  third  person  communicated  to  defendant.  Harper 
v.  Kean,  11  S.  &  P.  280. 

The  accused's  declarations  are  not  competent  in  his  favor.  Com. 
v.  Frew,  3  Pa.  Co.  Ct.  402:  Rudy  v.  Com.,  128  Pa.  500. 

Illustration  (a). —  This  doctrine  denied.  Neely  v.  Necly,  17  Pa. 
227. 

Written  hearsay. —  Written  hearsay  just  as  inadmissible  as  oral. 
Miller  v.  Miller,  187  Pa.  572. 

A  copy  of  a  list  of  lands  made  out  fifty  years  before  the  trial  is 
not  admissible.     Galloway  v.  Ogle,  2  Binn.  468. 

Other  examples :    Urket  v.  Coryell,  5  W.  &  S.  60. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  101 


SECTION  I. 
HEAKSAY  WHEN  KELEVANT. 

Article  15.* 
admission  defined. 

An  admission  is  a  statement  oral  or  written,  suggesting 
any  inference  as  to  any  fact  in  issue  or  relevant  or  deemed 
to  be  relevant  to  any  such  fact,  made  by  or  on  behalf  of 
any  party  to  any  proceeding.  Every  admission  is  (subject 
to  the  rules  hereinafter  stated)  deemed  to  be  a  relevant  fact 
as  against  the  person  by  or  on  whose  behalf  it  is  made,  but 
not  in  his  favour  unless  it  is  or  is  deemed  to  be  relevant  for 
some  other  reason. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  169 
et  seq.,  192;  McKelvey  on  Evidence,  pp.  90  et  seq.,  104. 

Admissions  competent  evidence. —  As  supporting  the  text,  see 
Cole  v.  Cole,  33  Me.  542;  Wilkinson  v.  Drew,  75  Me.  360;  Hamblett 
v.  Hamblett,  6  N.  H.  333;  Olney  v.  Chadscy,  7  R.  I.  224;  Whitney 
v.  Bayley,  4  Allen  (Mass.),  173;  Lord  v.  Bigelow,  124  Mass.  185; 
Crowley  v.  Pendleton,  46  Conn.  64;  Saunde7s'  Appeal,  54  Conn. 
108;  Broschart  v.  Tuttle,  59  Conn.  1,  21  Atl.  925,  11  L.  R.  A.  9,  33; 
Electric  Motor  Co.  v.  D.  Frisbie  Co.,  66  Conn.  67;  Carney  v.  Hen- 
nessey, 74  Conn.  107,  49  Atl.  910;  Harrington  v.  Gable,  81  Pa.  406; 
Folger  v.  Boyington,  67  Wis.  447    (pleadings)  ;   Pope  v.  Ellis,  115 

•See  Note  IX. 


102  A  DIGEST  OF  [Part  I. 

U.  S.  363  (pleadings)  ;  Bogie  v.  Nolan,  96  Mo.  85  (former  proceed- 
ings) ;  Ex  parte  Hayes,  92  Ala.   120    (former  proceedings). 

If  any  part  of  a  statement  is  received  as  an  admission,  all  other 
parts  of  the  same  statement  which  explain  or  qualify  it  must  also 
be  received.  Ins.  Co.  v.  'Newton,  22  Wall.  32;  Vauneter  v.  Crossman, 
42  Mich.  465;  Simmons  v.  Haas,  56  Md.  153. 

Oral  admissions  are  not  generally  conclusive  and  may  be  explained 
or  shown  to  be  contrary  to  facts,  etc.  Allen  v.  Kirk,  81  la.  658; 
Miller  v.  Rowan,  108  Ala.  98:  Knobloch  v.  Mueller,  123  111.  554. 
And  admissions  may  be  by  conduct.  Wesner  v.  Stein,  97  Pa.  St.  322 ; 
Lefever  v.  Johnson,  79  Ind.  554. 

Instances. —  The  question  is,  whether  the  title  in  a  particular  piece 
of  property  was  vested  in  A,  by  virtue  of  being  derived  from  B,  A'a 
father,  or  not. 

The  fact  that  C,  the  grantor  of  the  plaintiff,  D,  when  he  bought 
this  property  for  a  home  for  A's  mother,  E,  said  to  her:  "  You  have 
got  a  good  home  as  long  as  you  live  by  paying  the  taxes,  insurance, 
and  keeping  the  house  in  repair,"  to  which  statement  it  did  not  ap- 
pear that  E,  the  mother  of  A,  the  defendant,  made  any  reply,  is  an 
admission,  implied  by  her  silence,  that  D's  grantor,  C,  was  the  owner 
of  the  property,  and  in  affirmance  of  C"s  title,  and  is  relevant  to  the 
question  in  controversy.     Roberts  v.  Rice,  69  N.  H.  472,  45  Atl.  237. 

The  question  is,  whether  A,  a  driver  employed  by  B,  was  careless 
or  incompetent  in  the  overturning  of  a  carriage  driven  by  A,  whereby 
C  was  injured. 

The  fact  that  immediately  after  the  accident  A  was  discharged  by 
his  master,  B,  is  competent  evidence  as  an  admission  that  A  was  care- 
less or  incompetent.     Martin  v.  Toicle,  59  N.  H.  31. 

The  declaration  of  B,  that  "he  wished  to  God  it  had  burned  the 
whole  of  it,"  deemed  to  be  relevant  as  an  admission  in  an  action 
brought  by  A  against  B  for  a  loss  sustained  by  a  fire  negligently  set 
to  A's  grove.     Wilkinson  v.  Drew,  75  Me.  360. 

The  question  is,  whether  or  not  A  was  worth  $600  at  a  given  time. 

The  fact  that  at  that  time  A  rated  his  property  to  the  assessors 
at  $600  is  deemed  to  be  relevant  as  an  admission.  Richardson  v. 
Hitchcock,  28  Vt.  757. 

In  an  action  brought  by  A  against  B,  her  husband,  for  a  divorce, 
because  of  ill-treatment  of  her  by  B,  the  testimony  of  C,  that  B  had 
6tated  to  him  that  he  had  ill-treated  his  wife,  A,  is  deemed  to  be 


Chap.  IV.]  THE  LAW   OF  EVIDENCE.  103 

relevant  as  an  admission.  Morehouse  v.  Morehouse,  70  Conn.  420, 
39  Atl.  516. 

The  mere  absence  of  declarations  of  a  party  in  favor  of  his  own 
title  cannot  be  shown  by  the  adverse  party  against  him.  Saugatuck 
Cong.  Society  v.  East  Saugatuck  School  Dist.,  53  Conn.  481. 

Answers  in  former  actions  may  be  introduced  as  admissions.  Miles 
v.  Strong,  68  Conn.  273. 

The  question  is,  whether  a  certain  mortgage  and  note  were  given 
without  consideration. 

The  statements  of  A,  the  mortgagee,  after  the  execution  of  the 
mortgage,  and  in  the  presence  of  B,  the  mortgagor,  tending  to  show 
that  no  consideration  had  passed  between  the  parties,  are  deemed  to 
be  relevant  to  the  question  in  controversy  as  admissions.  Saunders 
v.  Dunn,  175  Mass.  164,  55  N.  E.  175. 

An  agreement  to  buy  shares  in  a  corporation  is  an  admission  of 
its  existence.     Mann  v.  Williams,  143  Mass.  394. 

Agency  may  be  disproved  by  admissions.  Hosmer  v.  Croat,  143 
Mass.  16. 

A  statement  by  a  party  that  he  has  heard  stories  inconsistent  with 
those  of  his  witnesses  is  not  admissible.  Stephens  v.  Vroman,  16 
N.  Y.  381,  reversing  18  Barb.  250. 

A  statement  of  A's  share  in  an  estate  in  the  account  of  B,  the 
administrator,  on  his  settlement  of  the  estate  with  the  surrogate, 
and  in  proceedings  for  his  appointment  as  a  guardian  of  A,  i9 
deemed  to  be  relevant  as  an  acknowledgment  by  him  of  the  amount 
uue  A  from  the  estate  in  an  action  on  the  bond  of  B  for  failure  to 
pay  A's  distributive  share.  Potter  v.  Ogden,  136  N.  Y.  384,  33  N. 
E.  228. 

Criminal  cases. —  Admissions  are  competent  in  a  criminal  case. 
Hire  v.  State,  144  Ind.  359;  State  v.  Hunt,  137  Ind.  537;  David- 
son v.  State,  135  Ind.  254;  Parker  v.  State,  136  Ind*  284. 

Admissions  of  persons  accused  of  crime  are  competent  if  volun- 
tary; it  is  otherwise  if  caused  by  fear  or  compulsion.  Snyder  v. 
State,  59  Ind.  105;  Smith  v.  State,  10  Ind.  106;  Harding  v.  State, 
54  Ind.  359;  Brown  v.  State,  71  Ind.  470;  State  v.  Freeman,  12 
Ind.  100. 

One  may  be  convicted  on  his  own  admissions.  Anderson  v.  State, 
26  Ind.  89. 

In  a  bigamy  trial  marriage  may  be  shown  by  admissions.  State 
v.  Seals,  16  Ind.  352. 


104  A  DIGEST  OF  [Part  1. 

The  statements  of  the  victim  are  not  competent  as  admissions. 
Shields  v.  State,  149  Ind.  395. 

The  statements  of  the  deceased  made  in  the  absence  of  the  ac- 
cused are  inadmissible  in  a  murder  trial.  Jones  v.  State,  71  Ind. 
66;  Binns  v.  State,  57  Ind.  46. 

The  accused  may  show  acts  and  declarations  implicating  another. 
Jones  v.  State,  64  Ind.  473. 

The  statement  of  a  stranger  that  he  committed  the  crime  is  not 
competent.     Siple  v.  State,  154  Ind.  647. 

The  accused  cannot  prove  his  declarations  made  immediately 
after  the  crime  was  committed.  Bland  v.  State,  2  Ind.  608 ;  Doles 
v.  State,  97  Ind.  555;  Dukes  v.  State.  11  Ind.  557. 

Charging  the  jury  concerning  admissions. —  Garfield  v.  State,  74 
Ind.  60,  63;  Koerner  v.  State,  98  Ind.  7,  19;  Finch  v.  Berguis,  89 
Ind.  360,  362;  Lewis  v.  Christie,  99  Ind.  377,  381;  Shorb  v.  Kinziet 
100  Ind.  429,  430;  Morris  v.  State  ex  rel.,  101  Ind.  560,  562;  Unruh 
v.  State  ex  rel,  105  Ind.  117,  120. 

The  court  should  not  instruct  the  jury  to  regard  oral  admissions 
with  caution.  Morris  v.  State,  101  Ind.  560;  Davis  v.  Eerdy,  76 
Ind.  272,  277;  Newman  v.  Hazelrigg,  96  Ind.  73,  75;  Tenor  v. 
Johnson,   107   Ind.  69,   70. 

It  is  not  error  to  refuse  to  instruct  as  to  what  effect  shall  be 
given  to  admissions.     Tobin  v.  Young,   124  Ind.  507,  514. 

Admissions  not  conclusive. —  Chandler  v.  Schoonover,  14  Ind.  324; 
Richardson  v.  St.  Joseph  Iron  Co.,  5  Blackf.  146.  Compare  Mc- 
Carty  v.  Osborne,  1  Blackf.  325. 

Declarations  by  defendant  in  a  slander  suit  on  moving  for  a 
change  of  venue,  that  he  wanted  to  make  the  plaintiff  trouble,  are 
incompetent  upon  the  trial  of  the  issue.  Peterson  v.  Hutchinson,  30 
Ind.  38. 

As  to  the  weight  to  be  given  to  admissions,  see  Pence  v.  Make- 
peace, 65  Ind.  345;  Gimble  v.  Hufford,  46  Ind.  125;  Finch  v.  Ber- 
gins,  89  Ind.  360;  Hill  v.  Newman,  47  Ind.  187;  Newman  v.  Hazel- 
rigg, 96  Ind.  73;  McMullen  v.  Clark,  49  Ind.  77. 

Implied  admissions. — ■  Admissions  may  be  implied  from  acts  and 
conduct.    Lefever  v.  Johnson,  79  Ind.  554. 

In  order  to  constitute  silence  an  admission,  the  statement  to  the 
party  must  be  made  under  such  circumstances  that  he  may  and 
naturally  would  reply.  Johnson  v.  Holliday,  79  Ind.  151,  157; 
Conway  v.   State,   118   Ind.   482,   485;    Howard  v.   Howard,    69   Ind. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  105 

592;  Surber  v.  State,  99  Ind.  71;  Pierce  v.  Goldsberry,  35  Ind.  317; 
Broyles  v.  State,  47  Ind.  251;  Puett  v.  fieard,  86  Ind.  104. 

He  must  have  heard  the  statements.  Leach  v.  Dickerson,  14  Ind. 
App.  375. 

Failure  to  answer  a  letter  is  not  generally  deemed  an  admission 
of  the  truth  of  its  contents.     Hays  v.  Morgan,  87  Ind.  231. 

Where  one  does  not  dissent  from  statements  in  a  letter  inclosing 
a  check  there  is  an  admission  by  silence.  St.  Joseph,  etc.  v.  Globe, 
etc.,  Co.,  156  Ind.  665. 

The  declarations  of  a  wife  are  admissible  against  the  husband  if 
made  in  his  presence.     Gebhart  v.  Bnrkett,  57  Ind.  378. 

Declarations  of  a  husband  are  not  admissible  against  the  wife  if 
she  was  not  present.     Bremmerman  v.  Jennings,   101   Ind.  253. 

Self-serving  declarations. —  Independent  declarations  which  are 
made  by  a  party  in  his  own  favor  are  not  admissible,  unless  they 
form  part  of  the  res  gestae.  Brown  v.  Kenyon,  108  Ind.  283; 
Scobey  v.  Armington,  5  Ind.  514;  Church  v.  Drummond,  7  Ind.  17; 
Zimmerman  v.  Marchland,  23  Ind.  474. 

Conversation. —  The  declarations  of  one  party  and  the  replies  of 
the  other,  in  a  conversation  had  between  the  two,  are  evidence  \.hen 
proved  in  a  cause.  The  jury  may  believe  those  of  the  one  side  and 
reject  those  of  the  other,  if  they,  from  all  the  circumstances,  be- 
lieve one  to  be  true  and  the  other  untrue.  Ball  v.  Clark,  15  Ind. 
370. 

Self-serving  declarations  are  admissible  neither  in  favor  of  the 
one  making  them  nor  his  assignee.     Hays  v.  Hynds,  28  Ind.  531. 

Bank-books  are  not  admissible  in  favor  of  the  bank.  First  Nat. 
Bank  v.  Williams.  4  Ind.  App.  501. 

Declarations  in  favor  of  the  declarant  cannot  be  offered  in  reply 
to  his  admissions.     Logansport  Co.  v.  Heil,   118  Ind.   135. 

But  partnership  books  are  admissible  in  favor  of  a  partner. 
Reno  v.  Crane,  2  Blackf.  217. 

Of  deceased  person. —  The  fact  that  a  person  has  died  during  the 
pendency  of  the  suit  does  not  render  his  admissions  incompetent. 
Matson  v.  M dehor,  42  Mich.   477. 

Admissions  by  silence. —  Statements  in  the  hearing  of  a  party, 
under  such  circumstances  that  acquiescence  can  be  inferred  from 
his  conduct,  are  admissible.      People  v.  O'Brien,  68  Mich.  468. 

When  statements  are  made  to  him  under  such  circumstances 
that  he  would  naturally  speak,  this  operates  as  a  tacit  admission. 


106  A  DIGEST  OF  [Part  I. 

Evans  v.   Montgomery,   95   Mich.   497;    Sanscrainte  v.    Torongo,   87 
Mich.  69. 

Conversations  between  one  of  the  parties  and  a  stranger,  in  the 
presence  of  the  other  party,  may  be  admissible;  if  admitted  on  the 
statement  of  counsel  that  the  other  party  was  present,  and  it  sub- 
sequently appears  that  he  was  not,  it  may  be  stricken  out  on 
motion.     Bronson  v.  Leach,  74  Mich.  713. 

New  Jersey. 

Weight  of  admissions  as  evidence. —  Oral  admissions  are  to  be 
received  with  caution.     Jones  v.  Knauss,  31  N.  J.  Eq.  609. 

Admissions  by  a  party  to  the  suit. —  De  Hart  v.  Creveling,  57 
N.  J.  L.  642;  Turrell  v.  Elizabeth,  33  N.  J.  L.  272;  Conover  v.  Brown, 
■2'.)  N.  J.  Eq.  510. 

Admissions  in  pleading.—  Admissions  in  the  pleadings  are  binding 
on  the  parties.  Schenck  v.  Schenck,  5  Hal.  276;  Thompson  v.  Harvey, 
Pen.  894;  Marsh  v.  Mitchell,  26  N.  J.  Eq.  497;  Tan  Hook  v.  Somer- 
■oillc  Co.,  5  N.  J.  Eq.  633;  Evans  v.  Huffman,  5  N.  J.  Eq.  254;  Lip- 
pincott  v.  Ridgway,  UN".  J.  Eq.  526;  Truax  v.  Truax,  Pen.  166; 
Carren  v.  Coogan,  50  N.  J.  Eq.  268. 

Admissions  in  an  unsworn  answer  are  competent  evidence  for  com- 
plainant.    Craft  v.  Schlag,  62  N.  J.  Eq.  567. 

Admission  of  a  marriage  in  an  answer  sufficient  to  prove  it  when 
corroborated.    Dare  v.  Dare,  52  N.  J.  Eq.  195. 

Bill  of  particulars  treated  as  an  admission.  Lee  v.  Heath,  61 
X.  J.  L.  250. 

Admissions  by  silence. —  Silence  in  the  face  of  an  accusation  as 
an  admission.     Donnelly  v.  State,  26  N.  J.  L.  464,  601. 

Failure  to  reply  to  a  letter  not  an  admission.  Hand  v.  Howell, 
61  N.  J.  L.  142. 

In  action  for  divorce,  statements  made  in  letters  alleged  to  be 
from  a  paramour  to  the  wife  and  undenied  by  her,  regarded  as  ad- 
missions by  lior.     Stickle  v.  Stickle,  48  N.  J.  Eq.  336. 

By  conduct. —  Acts  and  conduct  competent  as  admissions.  Voor- 
hees  v.  Hendrickson,  29  N.  J.  L.  101. 

Admissions  by  implication. —  Dixon  v.  Dixon,  8  C.  E.  Gr.  317. 

By  infants. —  An  infant  is  incapable  of  making  a  binding  admis- 
sion.    Shultz  v.  Sanders,  38  N.  J.  Eq.  154,  293. 

Self-serving  declarations. —  Declarations  of  a  party  as  to  the  con- 
tents of  an  agreement  he  has  made  not  admissible  in  his  favor.  Wil- 
son v.  Hillyer,  Sax.  63. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  107 

Declarations  of  a  party  not  admissible  in  his  own  favor.  Woolston 
v.  King,  Pen.  1049;  Sayre  v.  Sayre,  2  Gr.  487. 

Declarations  of  a  plaintiff  in  breach  of  promise  made  long  before 
action  was  begun  are  admissible  to  show  mutuality.  Peppinger  v. 
Low,  1  Hal.  384. 

Miscellaneous. —  An  admission  must  be  introduced  as  a  whole. 
Fox  v.  Lambson,  3  Hal.  275. 

Admissions  of  debtor  as  to  amount  due  on  account  are  competent 
without  introducing  the  creditor's  books.  Botinell  v.  Maivha,  37 
X.  J.  L.   198. 

An  admission  is  not  competent  to  show  that  due  notice  has  not 
been  given,  for  that  is  a  question  of  law.  Passaic  Freeholders  v. 
Stevenson,  46  N.  J.  L.  173. 

Admissions  made  on  one  trial  are  admissible  at  a  subsequent  trial 
of  the  same  case.  Reed  v.  Rocap,  4  Hal.  346;  Ramsden  v.  Bryden, 
31  N.  J.  L.  27. 

Maryland. 

Admissions  competent  evidence. —  Admissions  of  a  party  as  to  the 
character  of  his  possession  of  a  chattel  on  the  question  of  title. 
Garner  v.  Smith,  7  Gill,  1. 

Letters  of  a  party  containing  admissions  are  competent  evidence. 
Canton  v.  McGraw,  67  Md.  583. 

The  admissions  of  a  party  may  be  introduced  against  him  without 
first  questioning  him  concerning  them.    Kirk  v.  Garrett,  84  Md.  383. 

Declarations  against  one's  interest  as  to  boundary  are  admissible. 
Neat  v.  Hopkins,  87  Md.  19. 

Entries  in  books  of  account  made  by  the  party  to  be  charged  are 
admissible  against  him.     Ward  v.  Leitch,  30  Md.  326. 

Previous  inconsistent  declarations  are  admissible  against  a  party. 
Buschman  v.  Codd,  52  Md.  202. 

The  written  admissions  of  a  party  at  one  trial  are  admissible 
against  him  at  a  subsequent  trial.    El  wood  v.  Lannon,  27  Md.  200. 

A  creditor  may  prove  his  account  by  admissions  of  the  bankrupt 
debtor  made  before  the  act  of  bankruptcy,  but  not  by  those  made 
after.     Gaither  v.  Martin,  3  Md.  146. 

Admission  of  a  defendant  that  he  wrote  a  libelous  article.  Maurice 
v.  Worden,  54  Md.  233. 

Admissions  of  one  deceased  as  against  his  estate. —  In  an  action 
against  an  estate  for  services  performed  the  plaintiff  may  prove 
declarations  of  the  deceased  that  the  plaintiff  had  never  been  paid 
pnvthincf.     Gill  v.  Donovan,  96  Md.  518. 


108  A  DIGEST  OF  [Past  I. 

Silence  as  an  admission. —  Failure  to  answer  a  letter  making  a 
claim  is  no  admission  of  the  correctness  of  the  claim.  Biggs  v. 
Stueler,  93  Md.  100. 

Self-serving  statements. —  Declarations  of  a  party  favorable  to 
himself  are  not  admissible  unless  made  in  the  presence  of  the  other 
party  or  as  part  of  the  res  gestce.  Boyle  v.  McLaughlin,  4  H.  &  J. 
291;  Bowie  v.  Stonestreet,  G  Md.  418;  Green  v.  Sprogle,  16  Md.  579; 
Knight  v.  House,  29  Md.  194;  Nusbaum  v.  Thompson,  11  Md.  557; 
Whiteford  v.  Burckmyer,  1  Gill,  127;  Hagan  v.  Hendry,  18  Md.  177; 
Wolf  v.  Frank,  92  Md.  138;  Leffler  v.  Allard,  18  Md.  552. 

One  cannot  prove  a  fact  by  proving  his  own  previous  statements. 
Williamson  v.  Dillon,  1  H.  &  G.  444. 

One's  own  letters  are  not  admissible  in  his  favor.  Simmons  v. 
Haas,  56  Md.  153. 

One's  own  declarations  are  not  admissible  in  favor  of  his  own  title. 
Taggart  v.  Boldin,  10  Md.  104. 

Similar  statements  of  a  witness  made  before  he  had  an  interest  to 
misrepresent  are  admissible  to  corroborate  him  when  he  is  charged 
with  misrepresenting  by  reason  of  some  interest.  Stocksdale  v. 
Cullison,  35  Md.  322;  Washington  F.  I.  Co.  v.  Davison,  30  Md.  91; 
Bloomer  v.  State,  48  Md.  521;  Cooke  v.  Curtis,  6  H.  &  J.  93. 

One's  own  declarations  near  the  time  of  the  occurrence  are  ad- 
missible to  corroborate  his  testimony  when  it  has  been  contradicted 
by  the  other  side.  Mallonee  v.  Duff,  72  Md.  283;  Maitland  v.  Bank, 
40  Md.  540. 

Where  a  party  is  alleged  to  have  admitted  that  he  had  no  title,  he 
may  prove  in  rebuttal  that  at  about  the  same  time  he  asserted  his 
title.     Brooke  v.  Berry,   1  Gill,  153. 

Qualifying  statement. —  If  any  part  of  a  statement  is  received  as 
an  admission,  all  other  parts  of  the  same  statement  which  explain  or 
qualify  it  must  also  be  received.  Simmons  v.  Haas,  56  Md.  153; 
Smith  v.  Wood,  31  Md.  293;  Turner  v.  Jenkins,  1  H.  &  G.  161;  Bull 
v.  Schuberth,  2  Md.  38. 

When  a  statement  of  a  party  is  used  against  him,  other  statements 
that  he  made  as  part  of  the  same  conversation  are  admissible  though 
in  his  own  favor.    Bowie  v.  Stonestreet,  6  Md.  418. 

Pennsylvania. 

Authorities.—  Wilson  v.  Wilson,  137  Pa.  269;  Cope  v.  Kidney,  115 
Pa.  228;   Bramberry's  Estate,  156  Pa.  628;   Winters  v.  Mou-rer,  163 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  109 

Pa.  239 ;  Schwartz  v.  Hersker,  140  Pa.  550;  Harrington  v.  Gable,  81 
Pa.  406. 

An  admission  of  a  party  is  admissible  as  against  him  to  prove  the 
fact  admitted.     Eldred  v.  Hazlett,  33  Pa.  307. 

Admissions  by  a  party  are  admissible  against  him,  and  if  made  in 
court  in  another  action  they  can  be  proved  conclusively.  Usually 
admissions  are  uncertain  proof.     Stevenson  v.  Coal  Co.,  201  Pa.  122. 

Admissions  made  in  a  pleading  in  another  case  are  competent. 
Limbert  v.  Jones,  136  Pa.  31. 

Declarations  by  decedent  that  he  intended  to  pay  for  his  board  are 
admissible  to  prove  a  contract.  Perkins  v.  Hasbrouck,  155  Pa.  494; 
Appeal  of  Miller,  100  Pa.  568. 

Admissions  of  one  in  possession  to  show  that  he  is  not  holding 
adversely.     St.  Clare  v.  Shale,  9  Pa.  252;  S.  C,  20  Pa.  105. 

An  offer  to  pay  is  an  admission  by  inference  that  the  sum  is  due. 
Wallace  v.  Hussey,  63  Pa.  24. 

The  whole  of  an  admission  must  be  taken  together.  Newman  v. 
Bradley,  1  Dall.  240;  Farrell  V.  McClea,  1  Dall.  392;  Gill  v.  Kuhn, 
0  S.  &  R.  333;  Postens  v.  Postens,  3  W.  &  S.  127;  Hamsher  v.  Kline, 
57  Pa.  397. 

Oral  admissions  are  not  generally  conclusive  and  may  be  explained 
or  shown  to  be  contrary  to  facts,  etc.  And  admissions  may  be  by 
conduct.     Wesner  v.  Stein,  97  Pa.  32:1. 

Written  admissions. —  Martin  v.  Kline,  157  Pa.  473;  Ege  v.  Med- 
lar, 82  Pa.  86;  Mifflin  v.  Juniata  Co.,  144  Pa.  365. 

Admission  by  silence. —  McKlenlcan  v.  McMillan.  6  Ta.  366;  Hus- 
ton's Estate,  167  Pa.  217. 

Failure  to  file  a  judgment  as  an  asset  in  bankruptcy  is  admissible 
as  indicating  that  nothing  was  due.  Lyon  v.  Phillips,  106  Pa.  57; 
S.  P.,  Fullam  v.  Rose,  160  Pa.  47. 

Silence  in  the  face  of  an  assertion  of  fact  is  an  admission.  Mc- 
Clenkan  v.  McMillan,  6  Pa.  366. 

But  not  under  circumstances  making  it  improper  to  deny  the  as- 
sertion.    McDermotl  v.  Hoffman,  70  Pa.  31. 

Statements  made  in  the  hearing  of  a  party  at  the  time  of  paying 
him  money  are  evidence,  if  he  remains  silent.  Vincent  v.  Huff,  8 
S.  &  P.  381. 

Declarations  in  one's  own  favor. —  Declarations  in  one's  own  favor 
are  inadmissible.  Gordon  v.  Bowers,  16  Pa.  226;  Tisch  v.  TJtz,  142 
Pa.  186. 

When  they  are  not  part  of  the  res  gestae.  Cain  v.  Cain,  140  Pa. 
144;  Duvall  v.  Darby,  38  Pa.  56. 


110  A  DIGEST  OF  [Pabt  I. 

Self-serving  statements  not  admissible,  when  not4R  the  presence  of 
the  other  party.  Levering  v.  Rittenhouse,  4  Whart.  130;  Taylor  v. 
Adams,  2  S.  &  R.  534;  Wolf  v.  Carothers,  3  S.  &  R.  240;  Com.  v. 
Krcagei;  78  Pa.  477;  McGregor  v.  Sibley,  69  Pa.  388;  Wallace  v. 
Bafcer,  1  Binn.  610;  Smith  v.  £ty>e,  161  Pa.  115. 

Article  16.* 
who  may  make  admissions  on  behalf  of  others, 

AND     WHEN. 

Admissions  may  be  made  on  behalf  of  the  real  party  to 
any  proceeding — 

By  any  nominal  party  to  that  proceeding ; 

By  any  person  who,  though  not  a  party  to  the  proceeding, 
has  a  substantial  interest  in  the  event; 

By  any  one  who  is  privy  in  law,  in  blood,  or  in  estate  to 
any  party  to  the  proceeding,  on  behalf  of  that  party. 

A  statement  made  by  a  party  to  a  proceeding  may  be  an 
admission  whenever  it  is  made,  unless  it  is  made  by  a  person 
suing  or  sued  in  a  representative  character  only,  in  which 
case  [it  seems]  it  must  be  made  whilst  the  person  making  it 
sustains  that  character. 

A  statement  made  by  a  person  interested  in  a  proceeding, 
or  by  a  privy  to  any  party  thereto,  is  not  an  admission  unless 
it  is  made  during  the  continuance  of  the  interest  which 
entitles  him  to  make  it. 

Illustrations. 

(a)  The  assignee  of  a  bond  sues  the  obligor  in  the  name  of  the 
obligee. 

An  admission  on  the  part  of  the  obligee  that  the  money  due  has  been 
paid  is  deemed  to  be  relevant  on  behalf  of  the  defendant.* 

*  See  Note  X. 
*  Hanson  v.  Parker,  1749,  1  Wils.  257. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  Ill 

(6)  An  admission  by  the  assignee  of  the  bond  in  the  last  illustra- 
tion would  also  be  deemed  to  be  relevant  on  behalf  of  the  defendant. 

(c)  A  statement  made  by  a  person  before  he  becomes  the  assignee 
of  a  bankrupt  is  not  deemed  to  be  relevant  as  an  admission  by  him  in 
a  proceeding  by  him  as  such  assignee.5 

(d)  Statements  made  by  a  person  as  to  a  bill  of  which  he  had  been 
the  holder  are  deemed  not  to  be  relevant  as  against  the  holder,  if  they 
are  made  after  he  has  negotiated  the  bill.0 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  670 
et  seq.;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  169  et  seq;  Bulkley 
v.  London,  3  Conn.  84;  Coit  v.  Tracy,  8  Conn.  277;  Scripture  v.  New- 
comb,  16  Conn.  591.  Compare  Smith  v.  Vincent,  15  Conn.  4,  11,  as 
modifying  the  rule  of  the  text.     Wing  v.  Bishop,  3  Allen  (Mass.),  456. 

Nominal  party. —  Tenney  v.  Evans,  14  N.  H.  343. 

But  the  rule  of  the  text  is  repudiated  or  modified  in  many  States. 
1  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  678.  See  Butler  v. 
Millet,  47  Me.  492 ;  Gillighan  v.  Tebbets,  33  Me.  360 ;  Sargeant  v.  Sar- 
geant,  18  Vt.  371;  Ealloran  v.  Whitcomb,  43- Vt.  306;  Day  v.  Bald- 
win, 34  la.  380;  Oioings  v.  Low,  5  Gill  &  J.  (Md.)  134;  Palmer  v. 
Gassin,  2  Cranch  C.  C.  (U.  S.)  66;  Thompson  v.  Drake,  32  Ala.  99; 
Dazey  v.  Mills,  5  Gilman  (111.),  67;  Welch  v.  Mandeville,  1  Wheat. 
(U.  S.)  233;  Cooper  v.  Mayhew,  40  Mich.  528;  Bragg  v.  Geddes,  93 
111.  39. 

Instance. —  The  declarations  of  the  assignor  of  a  chose  in  action, 
made  after  the  assignment,  are  not  admissible  against  the  assignee. 
Wing  v.  Bishop,  3  Allen  (Mass.),  456;  Butler  v.  Millet,  47  Me.  492; 
Sargeant  v.  Sargeant,  18  Vt.  371. 

Person  with  substantial  interest. —  Bigeloio  v.  Foss,  59  Me.  162; 
Fickett  v.  Smith,  41  Me.  65,  66  Am.  Dec.  214;  Earle  v.  Bearce,  33 
Me.  337;  Gooch  v.  Bryant,  13  Me.  (1  Shep.)  3S6;  Pike  v.  Wiggin, 
8  N.  H.  356;  Hamblett  v.  Hamblett,  6  N.  H.  333;  Rich  v.  Eldredge, 
42  N.  H.  153;  Carlton  v.  Patterson,  29  N.  H.  (9  Fost.)  580;  Mathew- 

SFenwick  v.  Thornton,  1827,  M.  &  M.  51  (by  Lord  Tenterden).  In 
Smith  v.  Morgan,  1839,  2  M.  &  R.  257,  Tindal,  C.  J.,  decided  exactly 
the  reverse. 

QPocock  v.  Billing,  1824,  2  Bing.  269. 


112  A  DIGEST  OF  [Part!. 


son  v.  Eureka  Powder  Works,  44  N.  H.  289;  Taylor  v.  Grand  Trunk 
R.  R.  Co.,  48  N.  H.  304;  Barber's  Admr.  v.  Bennett,  60  Vt.  662; 
Bayley  v.  Bryant,  41  Mass.  (24  Pick.)  198;  Smith  v.  Aldrich,  94 
Mass.  (12  Allen)  553;  Lawrence  v.  Boston,  119  Mass.  126;  Ryan  v. 
Merriam,  4  Allen  (Mass.),  77;  Butler  v.  Damon,  15  Mass.  223; 
Terra*  v.  McRae,  14  Miss.  (6  Sm.  &  M.)  133;  &*a*e  v.  Alien,  27 
N.  C.  (5  Ired.)  36;  Wheeler  v.  Hambright,  9  Serg.  &  R.  (Pa.)  390. 
But  see  Hamlin  v.  Fitch,  Kirby  (Conn.),  174;  Stratford  v.  Sanford, 
9  Conn.  275,  284;   Bucknam  v.  Barnum,  15  Conn.  74. 

The  interest  must  be  a  substantial  one.  The  admission  of  the 
holder  of  a  bare  legal  title  is  not  competent.  Townsend  Sav.  Bank 
v.  Todd,  47  Conn.  217. 

Privies  in  law.—  Holt  v.  Walker,  26  Me.  (13  Shep.)  107,  45  Am. 
Dec.  98;  Putnam  v.  Osgood,  52  N.  H.  148;  Alger  v.  Andrews,  47  Vt. 
238;  Daggett  v.  Simonds,  173  Mass.  340,  53  N.  E.  907,  46  L.  R.  A. 
332;  Clouser  v.  Ruckman,  104  Tnd.  588;  McNight  v.  McNight,  20 
Wis.  446;  #cfcer*  v.  Triplett,  48  Ind.  174,  17  Am.  Rep.  735;  Hughes  v. 
Z).  cC-  tf.  CanaZ  Co.,  176  Pa.  St.  254,  35  Atl.  190. 

Instances. —  Declarations  of  one  in  the  possession  of  personal  prop- 
erty that  it  is  owned  by  another  are  deemed  to  be  relevant  in  favor 
of  the  person  declared  to  be  the  owner,  as  against  an  officer  who  has 
attached  it  as  the  property  of  the  declarant.  Putnam  v.  Osgood,  52 
N.  H.  148. 

Privies  in  blood. —  Supporting  text:  Dale  v.  Gower,  24  Me.  (11 
Shep.)  563;  Tilton  v.  Emery,  17  N.  H.  536;  Pike  v.  Hayes,  14  N.  H. 
19,  40  Am.  Dec.  171;  Little  v.  Gibson,  39  N.  H.  505;  Baker  v.  Haskell, 
47  N.  H.  479,  93  Am.  Dec.  455;  Hunt  v.  Haven,  56  N.  H.  87;  Hurlburt 
v.  Wheeler,  40  N.  H.  73;  Wheeler  v.  Wheeler's  Estate,  47  Vt.  637; 
Gilbert  v.  Vail,  60  Vt.  261,  14  Atl.  542;  Davis  v.  Nelson,  66  la.  171; 
McSweeney  v.  McMillen,  96  Ind.  298;  Crosman  v.  Fuller,  17  Pick. 
fM;iss.)  171;  Plimpton  v.  Chamberlain,  4  Gray  (Mass.),  320; 
Wilson  v.  Terry.  9  Allen  (Mass.),  214;  Fellows  v.  Smith,  130  Mass. 
378;  White  v.  Loring,  24  Pick.  (Mass.)  319;  Hodges  v.  Hodges,  2 
Cush.   (Mass.)   455;   Heywood  v.  Heywood,  10  Allen   (Mass.),  105. 

Instance. —  The  declarations  of  an  intestate  that  he  had  given  his 
son  something  handsome,  and,  if  he  did  well  for  him,  should  give  him 
more,  that  he  had  held  a  writing  against  him,  not  a  note,  but  had 
made  him  a  present  of  it;  and  that  he  had  had  claims  against  him, 
but  had  none  then, —  being  made  by  the  ancestor  against  his  right 
and  interest,  are  deemed  to  be  relevant  against,  and  binding  on, 


Chap.  IV.]  TME  LAW  OF  EVIDENCE.  113 

those  claiming  under  him  and  in  his  right.  Wheeler  v.  Wheeler's 
Estate,  47  Vt.  637. 

Privies  in  estate. —  Royal  v.  Chandler,  79  Me.  265,  1  Am.  St.  Rep. 
305,  9  Atl.  675;  Holt  v.  Walker,  26  Me.  (13  Shep.)  107;  Treat  v. 
Strickland,  23  Me.  (10  Shep.)  234;  Littlefield  v.  Getchell,  32  Me.  390; 
Crane  v.  Marshall,  16  Me.  (4  Shep.)  27,  33  Am.  Dec.  631;  Peabody 
v.  Hcwett,  52  Me.  33;  Adams  v.  French,  2  N.  H.  387;  Morrill  v.  Foster, 
33  N.  H.  379;  Inhabitants  of  South  Hampton  v.  Fowler,  54  N.  H.  197; 
Smith  v.  Poioers,  15  N.  H.  546;  Pike  v.  Hayes,  14  N.  H.  19,  40  Am. 
Dec.  171;  Hobbs  v.  Crane,  22  N.  H.  (2  Fost.)  130;  Dow  v.  Jewell,  18 
N.  H.  340,  45  Am.  Dec.  371;  Felloivs  v.  Fellows,  37  N.  H.  75;  Rand 
v.  Dodge,  17  N.  H.  343;  Smith  v.  Putnam,  62  N.  H.  369;  Wood  v. 
Fiske,  62  N.  H.  173;  Bennett  v.  Camp,  54  Vt.  36;  Beecher  v.  Parmelee, 
9  Vt.  352;  Dotews  v.  Belden,  46  Vt.  674;  HaZe  v.  Rich,  48  Vt.  217; 
Co/7m  v.  Cole,  67  Vt.  226,  31  Atl.  313;  Simpson  v.  Dix,  131  Mass. 
179;  Pickering  v.  Reynolds,  119  Mass.  Ill;  fft/de  v.  Middlesex  County, 
2  Gray  (Mass.),  267;  Osgood  v.  Coates,  1  Allen  (Mass.),  77;  Blake  v. 
Everett,  1  Allen  (Mass.),  248;  T^er  v.  Mather,  9  Gray  (Mass.),  177; 
Foster  v.  i7a«,  12  Pick.  (Mass.)  89,  22  Am.  Dec.  400;  Inhabitants 
of  West  Cambridge  v.  Inhabitants  of  Lexington,  2  Pick.  (Mass.)  536; 
Bosworth  v.  Sturtevant,  2  Cush.  (Mass.)  392;  Randegger  v.  Ehr- 
hardt,  51  111.  101;  Magee  v.  Raiguel,  64  Pa.  St.  110;  Gratz  v.  Beates, 
45  Pa.  St.  495;  Gw/  v.  f/aH,  3  Murph.  (N.  C.)  150;  PooZ  v.  Morris, 
'29  Ga.  374,  74  Am.  Dec.  68 ;  Bowen  v.  Chase,  98  U.  S.  254 ;  Dooley  v. 
Baynes,  86  Va.  644;   Tai/Zor  v.  Hess,  57  Minn.  96. 

Instances. —  And  statements  by  the  owner  of  land  or  by  one  claim- 
ing title  relative  to  the  character  of  his  possession  and  title  are  ad- 
missible against  persons  in  privity  with  the  declarant.  Creighton  v. 
Hoppis,  99  Ind.  369;  Mississippi  Co.  v.  Vowels,  101  Mo.  225;  Oarber 
v.  Doersom,  117  Pa.  St.  225;  Lacy  v.  Tenn.,  etc.,  R.  Co.,  92  Ala.  246; 
Sharp  v.  Blackenship,  79  Cal.  411. 

In  a  contest  of  the  will,  to  which  B  is  a  party,  the  admissions  of 
B  are  relevant  to  the  question  in  controversy.  Fay  v.  Feely,  18  R.  I. 
715,  38  Atl.  342. 

When  made  —  Parties. —  Supporting  text:  McCobb  v.  Healy,  17 
Me.  (5  Shep.)  158;  Taylor  v.  Grand  Trunk  R.  R.  Co.,  48  N.  H.  304; 
Tufts  v.  Hayes,  5  N.  H.  452;  Straw  v.  Jones,  9  N.  H.  400;  Perkins 
v.  Towle,  59  N.  H.  583;  Barber's  Admr.  v.  Bennett,  60  Vt.  662,  15 
Atl.  348,  6  Am.  St.  Rep.  141,  1  L.  R.  A.  224   (citing  this  article); 


114  A  DIGEST  OF  [Part  I. 

Goldsborough  v.  Baker,  3  Cranch  C.  C.  48 ;  Dillon  v.  Chouteau,  7  Mo. 
386;  Duncan  v.  Laxmence,  24  Pa.  St.  154;  Klein  v.  Hoffheimer,  132 
U.  S.  367,  10  Sup.  Ct.  130;  Gordon  v.  Stubbs,  30  La.  Ann.  625; 
/2<rs/cr  v.  OZi'rer,  97  Ala.  710,  12  So.  238;  White  v.  Merrill,  82  CaL 
14,  22  Pac.  1129;  Holway  v.  Boston  Land,  etc.,  Co.,  20  Colo.  7.  36 
Pac.  767;  Batchelder  v.  Rand,  117  Mass.  176;  Henshaw  v.  Mullens, 
121  Mass.  143;  Dole  v.  Young,  24  Pick.  (Mass.)  250;  Davis  v. 
Spooner,  3  Pick.   (Mass.)  284. 

A  party's  admissions  are  relevant  whenever  they  were  made. 
Plant  v.  McEwen,  4  Conn.  549. 

When  made  —  Representatives. —  Brooks  v.  Goss,  61  Me.  307; 
Barber  v.  Bennett,  60  Vt.  662,  15  Atl.  348,  6  Am.  St.  Rep.  41,  1  L. 
R.  A.  224  (citing  this  article)  ;  Lamar  v.  Micou,  112  U.  S.  432;  Web- 
ster v.  Le  Compte,  74  Md.  249 ;  Prudential  Ins.  Co.  v.  Fredericks, 
41  111.  App.  419;  Godbee  v.  Sapp,  53  Ga.  283;  Hill  v.  Buckminster, 
5  Pick.  (Mass.)  391;  Faunce  v.  Gray,  21  Pick.  (Mass.)  243;  Phillips 
V.  Middlesex,  127  Mass.  262. 

An  admission  of  one  suing  or  sued  in  a  representative  capacity  to 
be  admissible  must  have  been  made  while  he  sustained  that  charac- 
ter.    Plant  v.  McEwen,  4  Conn.  549. 

Continuance  of  interest. —  Supporting  last  paragraph  of  text: 
Merrick  v.  Parkman,  18  Me.  407;  Bryant  v.  Crosby,  40  Me.  9;  Holt 
V.  Walker,  26  Me.  (13  Shep.)  107;  Treat  v.  Strickland,  23  Me.  (10 
Shep.)  234;  Tarr  v.  Smith,  68  Me.  97;  Osgood  v.  Eaton,  63  N.  H.  355; 
Morrill  v.  Foster,  33  N.  H.  379;  Mandeville  v.  Welch,  5  Wheat.  (U. 
S.)  277,  283;  Dudley  v.  Hurst,  67  Md.  44,  1  Am.  St.  Rep.  368;  Kim- 
ball v.  Leland,  110  Mass.  323;  Chase  v.  Horton,  143  Mass.  118,  19 
N.  E.  31;  Roberts  v.  Medbery,  132  Mass.  100;  Bond  v.  Fitzpatrick, 
4  Gray  (Mass.),  89;  Stockwell  v.  Blarney,  129  Mass.  312;  fft/de  v. 
Middlesex  County,  2  Gray  (Mass.),  267;  Osgood  v.  Coates,  1  Allen 
(Mass.),  77;  J5/afce  v.  Everett,  1  Allen  (Mass.),  248;  Simpson  v. 
Zh'ar,  131  Mass.  179. 

So  declarations  by  a  grantor  or  mortgagor  of  land  made  before  ac- 
quiring or  after  parting  with  his  interest  are  not  competent  admis- 
sions against  his  grantee  or  mortgagee.  Miller  v.  Cook,  135  111.  190; 
Ruckman  v.  Cory,  129  U.  S.  387 ;  McLaughlin  v.  McLaughlin,  91  Pa. 
St.  462. 

The  declarations  of  an  assignor  made  after  the  assignment  are  not 
receivable  as  admissions  against  his  assignee.    Ohio  Coal  Co.  v.  Dav- 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  115 

enport,  37  0.  St.  194;  Turner  v.  Hardin,  80  la.  691;  Winchester,  etc., 
Co.  v.  Creary,  116  U.  S.  161. 

Acceptance  of  benefit. —  Spaulding  v.  Albin,  63  Vt.  148,  21  Atl.  530; 
Carpenter  v.  Hollister,  13  Vt.  552,  37  Am.  Dec.  612;  Alger  v.  An- 
drews,  47  Vt.  238. 

Against  administrator. —  The  admissions  of  an  intestate  are  re- 
ceivable against  his  administrator.  Clouser  v.  Ruckman,  104  Ind. 
588;  Bevins  v.  Cline,  21  Ind.  37;   Slade  v.  Leonard,  75  Ind.  171. 

Against  trustee  in  bankruptcy. —  Compton  v.  Fleming,  8  Blackf. 
153.  See,  also,  Caldwell  v.  Williams,  1  Ind.  405;  Wynne  v.  Glide- 
well,  17  Ind.  446. 

Husband  and  wife. —  Where  a  husband  is  sued  for  his  wife's  tort, 
her  declarations  may  be  proved  against  him.  Ball  v.  Bennett,  21 
Ind.   427. 

In  a  suit  against  husband  and  wife  for  a  debt  due  by  the  wife 
before  the  marriage,  the  plaintiff  cannot  prove  admissions  by  the 
wife  during  coverture.     Brown  v.  Lasselle,  6  Blackf.  147. 

On  a  bill  against  husband  and  wife,  mere  admissions  in  the  an- 
swer, although  filed  in  the  name  of  both  husband  and  wife,  do  not 
authorize  a  decree  against  her.  (Citing  Gr.  Eq.  Ev.  24;  9  Price, 
556;  2  M.  &  K.  678;  1  Smith  Ch.  Pr.  253.)  Comley  v.  Hendricks,  8 
Blackf.    189;    Work  v.  Doyle,  3  Ind.  436. 

New  Jersey. 

Declarations  of  privies  in  estate. —  Kinna  v.  Smith,  2  N.  J.  Eq. 
14;  Sweet  v.  Parker,  22  N,  J.  Eq.  453;  Beeckman  V.  Montgomery,  14 
N.  J.  Eq.  106;  Ten  Eyck  v.  Bunk,  26  N.  J.  L.  513;  Edwards  v.  Der- 
rickson,  28  N.  J.  L.  39,  29  N.  J.  L.  468. 

The  statements  and  acts  of  a  former  possessor  of  land  are  com- 
petent evidence  to  prove  boundary.  Townsend  v.  Johnson,  Pen.  706; 
Cox  v.  Tomlin,  4  Harr.  76;  Horner  v.  Slillioell,  35  N.  J.  L.  310;  Tan 
Blarcom  v.  Kip,  26  N.  J.  L.  351. 

A  disavowal  by  a  previous  owner  of  the  claim  now  made  by  plain- 
tiff is  admissible  against  him.  New  Jersey  Zinc  Co.  v.  Lehigh  Zinc 
Co.,  59  N.  J.  L.  189. 

Declarations  of  a  former  holder  of  a  note,  made  while  such,  that 
it  has  been  paid.    Reed  v.  Vancleve,  27  N.  J.  L.  352. 

Privies  in  blood. —  Whether  a  father  intended  a  certain  convey- 
ance as  an  advancement  to  his  son  may  be  shown  by  the  father's 
declarations  at  the  time  of  the  conveyance  or  afterward.  Speer  v. 
Speer,  14  N.  J.  Eq.  240. 


116  A  DIGEST  OF  [Part  I. 

Maryland. 

Nominal  party. —  As  to  admissions  by  one  who  is  merely  a  nomi- 
nal part}-,  see  Owings  v.  Low,  5  G.  &  J.  134. 

Admissions  of  a  party  to  the  suit  are  competent  evidence,  although 
he  is  acting  in  the  capacity  of  trustee.    3eatiy  v.  Davis,  9  Gill,  211. 

Joint  defendants. —  Admissions  of  a  joint  defendant  are  competent 
against  the  other.    Lowe  v.  Boteler,  4  H.  &  McH.  346. 

Privies  in  estate. —  Admissions  of  one  under  whom  a  party  claims 
title  are  admissible  as  against  such  party.  Dorsey  v.  Dorsey,  3  H. 
&  J.  410;  Keener  v.  Kauffman,  10  Md.  296;  Richards  v.  Sican,  7  Gill, 
366. 

Admissions  by  a  previous  owner  in  a  bill  in  equity  are  competent 
against  a  subsequent  owner  in  privity  with  the  former.  Stump  V. 
Henry,  6  Md.  201. 

Statements  of  a  former  owner  are  not  admissible  as  against  one 
not  claiming  under  such  former  owner.     Smith  v.  Wood,  31  Md.  293. 

Statements  of  the  holder  of  a  bond  are  admissible  against  one  who 
holds  under  him.     Clary  v.  Grimes,  12  G.  &  J.  31. 

Privies  in  blood. —  Declarations  of  the  father  of  a  party,  who  had 
no  interest  in  the  suit  and  whose  knowledge  was  derived  from  hear- 
say,  are  not  admissible.     City  Pass.  Ry.  v.  McDonnell,  43  Md.  534. 

When  made  —  Representatives. —  Webster  v.  Le  Compte,  74  Md. 
249. 

Statements  of  an  executor  or  administrator  are  admissible  against 
the  estate  only  if  made  while  he  was  acting  in  such  capacity.  Dent 
v.  Dent,  3  Gill,  4S2. 

Continuance  of  interest. —  Supporting  last  paragraph  of  text: 
y  v.  Hurst,  67  Md.  44,  1  Am.  St.  Rep.  368. 

.Acts  and  declarations  of  a  grantor  subsequent  to  the  transfer  are 
not  admissible  to  impeach  it.  Dudley  v.  Hurst,  67  Md.  44;  Hall  v. 
Hink8,  21  Md.  406;  Cooke  v.  Coolce,  29  Md.  538;  Dorsey  v.  Gassaway, 
2  IT.  &  J.  402;  Stewart  v.  Redditt,  3  Md.  67. 

Sta foments  of  n  grantor  at  the  time  of  executing  the  deed,  that  its 
object  is  to  defraud  creditors,  are  admissible  against  the  grantee. 
McDowell  v.  Goldsmith,  2  Md.  Ch.  370;  Cooke  v.  Cooke,  29  Md.  538; 
Groff  v.  Rohrer.  35  Md.  327. 

Pennsylvania. 

Privies  in  estate.—  Magee  v.  Raiguel,  64  Pa.  110;  Gratz  v.  Bcates, 
45  Pa.  405. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  117 

Admissions  of  a  predecessor  in  estate  are  admissible.  Brown  v. 
Bank,  3  Pa.  187;  Weidman  v.  Kohr,  4  S.  &  R.  174;  Patton  v.  GoMs- 
borough,  9  S.  &  R.  47;  8 trickier  v.  Torfd,  10  S.  &  R.  63;  McKellip  v. 
Mcllhenny,  4  Watts,  317. 

In  ejectment  admissions  of  one  under  whom  defendant  holds  are 
admissible.  Andrew  V.  Fleming,  2  Dall.  93;  i?eed  v.  Dickey,  1  Watts, 
152;  iiden  v.  Grove,  18  Pa.  377;  Mclldoivny  v.  WiHiams,  28  Pa.  492. 

Admissions  and  acts  of  former  owners  admitted  to  show  boundary. 
Benner  V.  Hauser,  11  S.  &  R.  352;  Hunt  v.  Devling,  8  Watts,  403; 
Sheaffer  v.  Eakman,  56  Pa.  144. 

Entries  by  a  decedent  in  his  account-books  against  his  interest  are 
admissible  against  his  representatives.  Appeal  of  Roberts,  126  Pa. 
102;  Johnson  v.  McCain,  145  Pa.  531. 

By  predecessor  in  title  as  to  a  right  of  way.  Bennett  v.  Biddle, 
150  Pa.  420. 

Acts  and  statements  of  a  former  owner  of  personal  property  are 
admissible  against  those  claiming  under  him.  Caldwell  v.  Gamble, 
4  Watts,  292.  But  not  acts  and  statements  after  the  sale.  Pier  v. 
Duff,  63  Pa.  59;  Mitchell  v.  Welch,  17  Pa.  339. 

Admissions  of  the  assignor  of  a  bond  before  the  assignment  are 
admissible  against  the  assignee.  Kellogg  v.  Krauser,  14  S.  &  R.  137. 
But  not  when  made  after  the  assignment.  Eby  v.  Eby,  5  Pa.  435; 
Work's  Appeal,  59  Pa.  444. 

And  statements  by  the  owner  of  land  or  by  one  claiming  title  rela- 
tive to  the  character  of  his  possession  and  title  are  admissible 
against  persons  in  privity  with  the  declarant.  Garber  v.  Doersom, 
117  Pa.  225. 

Privies  in  law. —  Hughes  v.  D.  &  H.  Canal  Co.,  176  Pa.  254.  35  Atl. 
190. 

Person  with  substantial  interest. —  Wheeler  v.  Hambright,  9  S.  &  R. 
390. 

In  suit  against  administrators,  declarations  of  an  heir  are  admis- 
sible, because  he  has  a  substantial  interest  in  the  event.  Reagan  v. 
Grim,  13  Pa.  50S. 

When  made  —  Parties. —  Supporting  text:  Duncan  v.  Lawrence,  24 
Pa.   154. 

Admissions  of  a  party  are  competent  as  against  him  whether  ma  tie 
before  or  after  the  suit  was  brought.  Morris  v.  Yanderen.  1  Dall. 
64;  Kunkle  v.  Wolfersberger,  6  Watts,  126;  Gallaher  v.  Collins,  7 
Watts,  552;  McGill  v.  Ash,  7  Pa.  397;  Duncan  v.  Lawrence,  24  Pa. 


118  A  DIGEST  OF  [Part  I. 

154;  Shirley  v.  Shirley,  59  Pa.  267;  Simons  v.  Oil  Co.,  61  Pa.  202; 
Hunger  v.  Silsbee,  64  Pa.  454. 

Continuance  of  interest. —  Statements  of  a  person  who  no  longer 
has  an  interest  are  not  admissible  to  impeach  title  derived  from  him. 
Packer  v.  Qonsalus,  1  S.  &  R.  526;  Hoffman  v.  Lee,  3  Watts,  352; 
Romig  v.  Romig,  2  Eawle,  241;  Fostens  v.  Postens,  3  W.  &  S.  127; 
Payne  v.  Ov/7,  7  W.  &  S.  458;  Gregory  v.  (/>-#«,  1  Pa.  208;  Afc- 
lldowny  v.  H'i7/ia»is.  28  Pa.  492. 

Admissions  of  privies  in  estate  are  admissible  only  if  made  while 
interest  continues.     McLaughlin  v.  McLaughlin,  91  Pa.  462. 

Declarations  of  a  grantor  after  parting  with  title  are  not  admis- 
sible against  grantee.     Baldwin  v.  Slier,  191  Pa.  432. 

Statements  of  a  grantor  of  land  after  the  transfer,  made  in  pur- 
suance of  a  conspiracy  to  defraud  creditors,  are  admissible.  Souder 
V.  Schechterly,  91  Pa.  S3. 

Declarations  of  a  transferrer  while  still  in  possession  may  be  ad- 
missible,    Pier  v.  Duff,  63  Pa.  59. 

Article  17.* 

admissions  by  agents  and  persons  jointly  interested 
with  parties. 

Admissions  may  be  made  by  agents  authorised  to  make 
them  either  expressly  or  by  the  conduct  of  their  principals  : 
but  a  statement  made  by  an  agent  is  not  an  admission 
merely  because  if  made  by  the  principal  himself  it  would 
have  been  one. 

A  report  made  by  an  agent  to  a  principal  is  not  an  ad- 
mission which  can  be  proved  by  a  third  person.7 

Partners  and  joint  contractors  are  each  other's  agents  for 
the  purpose  of  making  admissions  against  each  other  in 
relation  to  partnership  transactions  or  joint  contracts. 

*  See  Note  XI. 
T  Re  Devala  Company,  1883,  22  Ch.  Div.  593. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  119 

Barristers  and  solicitors  are  the  agents  of  their  clients  for 
the  purpose  of  making  admissions  whilst  engaged  in  the 
actual  management  of  the  cause,  either  in  court  or  in  cor- 
respondence relating  thereto;  but  statements  made  by  a 
barrister  or  solicitor  on  other  occasions  are  not  admissions 
merely  because  they  would  be  admissions  if  made  by  the 
client  himself. 

The  fact  that  two  persons  have  a  common  interest  in  the 
same  subject-matter  does  not  entitle  them  to  make  admis- 
sions respecting  it  as  against  each  other. 

In  cases  in  which  actions  founded  on  a  simple  contract 
have  been  barred  by  the  Statute  of  Limitations  no  joint 
contractor  or  his  personal  representative  loses  the  benefit 
of  such  statute,  by  reason  only  of  any  written  acknowledg- 
ment or  promise  made  or  signed  by  [or  by  the  agent  duly 
authorised  to  make  such  acknowledgment  or  promise  of] 
any  other  or  others  of  them  [or  by  reason  only  of  payment 
of  any  principal,  interest,  or  other  money,  by  any  other  or 
others  of  them].8 

A  principal,  as  such,  is  not  the  agent  of  his  surety  for  the 
purpose  of  making  admissions  as  to  the  matters  for  which 
the  surety  gives  security. 

Illustrations. 

(a)  The  question  is,  whether  a  parcel,  for  the  loss  of  which  a  Rail- 
way Company  is  sued,  was  stolen  by  one  of  their  servants.  State- 
ments made  by  the  station-master  to  a  police  officer,  suggesting  that 

§9  Geo.  IV,  c.  14,  s.  1.  The  words  in  the  first  set  of  brackets  were 
added  by  19  &  20  Vict.  c.  97,  s.  13.  The  words  in  the  second  set  by 
s.  14  of  the  same  Act.     The  language  is  slightly  altered. 


120  A  DIGEST  OF  [Part  I. 

the  parcel  had  been  stolen  by  a  porter,  are  deemed  to  be  relevant,  as 
against  the  railway,  as  admissions  by  an  agent.'J 

( b )  A  allows  his  wife  to  carry  on  the  business  of  his  shop  in  his 
absence.  A  statement  by  her  that  he  owes  money  for  goods  supplied 
to  the  shop  is  deemed  to  be  relevant  against  him  as  an  admission  by 
an  agent.  10 

(c)  A  sends  his  servant,  B,  to  sell  a  horse.  What  B  says  at  the 
time  of  the  sale,  and  as  part  of  the  contract  of  sale,  is  deemed  to  be  a 
relevant  fact  as  against  A,  but  what  B  says  upon  the  subject  at  some 
different  time  is  not  deemed  to  be  relevant  as  against  AH  [though  it 
might  have  been  deemed  to  be  relevant  if  said  by  A  himself]. 

(d)  The  question  is,  whether  a  ship  remained  at  a  port  for  an 
unreasonable  time.  Letters  from  the  plaintiff's  agent  to  the  plaintiff 
containing  statements  which  would  have  been  admissions  if  made  by 
the  plaintiff  himself  are  deemed  to  be  irrelevant  as  against  him.12 

(e)  A,  B,  and  C  sue  D  as  partners  upon  an  alleged  contract  re- 
specting the  shipment  of  bark.  An  admission  by  A  that  the  bark  was 
his  exclusive  property  and  not  the  property  of  the  firm  is  deemed  to  be 
relevant  as  against  B  and  C.13 

(f)  A,  B,  C,  and  D  make  a  joint  and  several  promissory  note. 
Either  can  make  admissions  about  it  as  against  the  rest.14 

(g)  The  question  is,  whether  A  accepted  a  bill  of  exchange.  A 
notice  to  produce  the  bill  signed  by  A's  solicitor  and  describing  the  bill 
as  having  been  accepted  by  A  is  deemed  to  be  a  relevant  fact.1^ 

(h)  The  question  is,  whether  a  debt  to  A,  the  plaintiff,  was  due 
from  B,  the  defendant,  or  from  C.  A  statement  made  by  A's  solicitor 
to  B's  solicitor  in  common  conversation  that  the  debt  was  due  from 
C  is  deemed  not  to  be  relevant  against  A.ig 

(i)  One  co-part-owner  of  a  ship  cannot,  as  such,  make  admissions 
against  another  as  to  the  part  of  the  ship  in  which  they  have  a  common 

9  Kirkstall  Brewery  v.  Furness  Ry.,  1874,  L.  R.  9  Q.  B.  468. 

10  Clifford  v.  Burton,  1823,  1  Bing.  199. 
n  Helyeav  v.  Hauke,  1803,  5  Esp.  72. 
WLanyhom  v.  Allnutt,  1812,  4  Tau.  511. 
13  Lucas  v.  Dc  La  Cour,  1813,  1  M.  &  S.  249. 
uWhitcomb  v.  Whitting,  1781,  1  S.  L.  C.  644. 
15  Holt  v.  Squcrc,  1825,  By.  &  Mo.  282. 
™Petch  v.  Lyon,  1846,  9  Q.  B.  147. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  121 

interest,  even  if  he  is  co-partner  with  that  other  as  to  other  parts  of 
the  ship.i" 

(j)  A  is  surety  for  B,  a  clerk.  B  being  dismissed  makes  statements 
as  to  sums  of  money  which  he  has  received  and  not  accounted  for. 
These  statements  are  not  deemed  to  be  relevant  as  against  A,  as  ad- 
missions.^ 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  690 
et  scq.;  McKelvey  on  Evidence,   p.   100  et  seq. 

Agents. —  The  admission  must  concern  some  act  of  agency  which  is 
part  of  the  res  gestce.  Cliquot's  Champagne,  3  Wall.  114,  140;  U.  S. 
v.  Brig  Burdett,  9  Pet.  682,  689 ;  Vicksburg,  etc.,  R.  Co.  v.  O'Brien, 
119  U.  S.  99,  104;  Giberson  v.  Patterson  Mills  Co.,  174  Pa.  St.  369; 
Ohio,  etc.,  R.  Co.  v.  Stein,  133  Ind.  243;  Paterson  v.  Wabash,  etc.,  R. 
Co.,  54  Mich.  91;  Xenia  Bank  v.  Stewart,  114  U.  S.  224;  Carney  v. 
Hennessey,  74  Conn.  107. 

The  declarations  of  an  agent,  in  the  course  of  his  agency,  are  evi- 
dence against  the  principal.  Perkins  v.  Burnet,  2  Root  (Conn.),  30; 
Mather  v.  Phelps,  2  Root  (Conn.),  150;  N.  &  W.  R.  R.  Co.  v.  Cahill, 
18  Conn.  492.  See,  also,  Southington  Eccl.  Society  v.  Cridley,  20 
Conn.  204;  Plumb  v.  Curtis,  66  Conn.  154. 

But  not  his  declarations  as  to  acts  previously  done  by  him,  as  agent. 
Fairfield  County  Turnpike  Co.  v.  Thorp,  13  Conn.  128. 

Before  the  declarations  of  one  claimed  to  be  an  agent  of  the  party 
can  be  received,  his  agency  must  be  proved  aliunde.  Fitch  v.  Chapman, 
10  Conn.  12;  Builders'  Supply  Co.  v.  Cox,  68  Conn.  381. 

The  admissions  of  a  public  official  are  competent  evidence  to  bind 
the  public  corporation,  when  made  in  connection  with  some  act  within 
the  scope  of  his  duties.  Smythe  v.  Bangor,  72  Me.  252 ;  Gray  v.  Rol- 
linsford,  58  N.  H.  253. 

The  admission  of  a  mere  inhabitant  is  incompetent.  Petition  of 
Landoff,  34  N.  H.  163. 

11  J  aggers  v.  Binnings,  1815,  1  Star.  64. 

is  Smith  v.  Whippingham,  1833,  6  C.  &  P.  78.  See  also  Evans  v. 
Beattie,  1803,  5  Esp.  26;  Bacon  v.  Chesnety,  1816,  1  Star.  192;  Caer- 
marthen  R.  C.  v.  Manchester  R.  C,  1873,  L.  R.  8  C.  P.  685. 


122  .  A  DIGEST  OF  [Part  I. 

Either  a  wife  or  husband  may  be  an  agent  of  the  other  party  to  the 
relation,  but  the  agency  must  be  shown;  it  is  not  presumed.  Good- 
rich v.  Tracy,  43  Vt.  314;  Phelps  v.  James,  86  la.  399;  Wright  v. 
Toicle,  67  Mich.  255. 

Partners.—  Fickett  v.  Swift,  41  Me.  65,  66  Am.  Dec.  214. 

In  an  action  against  former  copartners,  upon  a  plea  of  the  statute 
of  limitations,  evidence  of  an  acknowledgment  by  one,  after  the  dis- 
solution, and  when  himself  insolvent,  is  admissible  against  both.  Aus- 
tin v.  Bostwick,  9  Conn.  501.    See  also  Bissell  v.  Adams,  35  Conn.  299. 

Sustaining  the  text  so  far  as  admissions  made  during  the  existence 
of  the  partnership  are  concerned.  Griffin  v.  Stearns,  44  N.  H.  498 ; 
Western  Assurance  Co.  v.  Towle,  65  Wis.  247 ;  Slipp  v.  Hartley,  50 
Minn.  118. 

While  there  is  a  conflict  on  the  point,  some  authorities  have  held 
that  the  admissions  of  a  partner  as  to  acts  during  the  existence  of  the 
partnership  are  admissible  to  charge  the  partnership,  if  made  after 
dissolution.  Parker  v.  Merrill,  6  Greenl.  (Me.)  41;  Einkley  v.  Gilli- 
gan,  34  Me.  101;  Loomis  v.  Loomis,  26  Vt.  198,  203;  Rich  v.  Flanders, 
39  N.  H.  304,  339. 

The  fact  of  partnership  must  first  be  shown.  Bundy  v.  Bruce,  61 
Vt.  619;  HcNeilan's  Estate,  167  Pa.  St.  472;  Armstrong  v.  Potter, 
103  Mich.  409;  Vaunoy  v.  Klein,  122  Ind.  416;  Pleasants  v.  Faut,  22 
Wall.  116;  McClurg  v.  Howard,  45  Mo.  365.  Compare  Davis  v.  Po- 
land, 92  Va.  225 ;  Feigley  v.  Whittaker. 

A  retiring  partner  is  not  bound  by  the  admissions  of  the  remain- 
ing partners  made  after  his  retirement.-  Bell  v.  Morrison,  1  Pet. 
357;  Wilson  v.  Waugh,  101  Pa.  St.  233;  Gates  v.  Fisk,  45  Mich.  522; 
Nat.  Bank  of  Commerce  v.  Meadcr,  40  Minn.  325;  Maxey  v.  Strong, 
53  Miss.  280. 

Joint  contractors. —  Bound  v.  Lathrop,  4  Conn.  339;  Pierce  v. 
Roberts,  57  Conn.  40;  Dennis  v.  Williams,  135  Mass.  28;  Martin  v. 
Root,  17  Mass.  222;  Hunt  v.  Bridgham,  2  Pick.  (Mass.)  581;  Am- 
herst Bank  v.  Root,  2  Mete.  (Mass.)  522. 

The  acknowledgment  of  one  of  several  joint  makers  of  a  promissory 
note  takes  it  out  of  the  statute  as  against  the  others.  Bound  v.  La- 
throp, 4  Conn.  338,  339. 

And  this,  although  the  others  were  only  sureties  for  the  first,  if 
the  promise  was  not  collusively  made.  Clark  v.  Sigourney,  17  Conn. 
516;  Caldwell  v.  Sigourney,  19  Conn.  44;  Block  v.  Dorman,  51  Mo. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  123 

31;  Schindel  v.  Gates,  46  Md.  604.  Contra,  Campbell  v.  Brown,  86 
N.  C.  376;  Kallenbach  v.  Dickinson,  100  111.  427. 

Modifying  rule  of  text.—  Clark  v.  Burn,  86  Pa.  St.  502;  Wil- 
loughby  v.  Irish,  35  Minn.  63;  Steele  v.  Souder,  20  Kan.  39;  McDer- 
tnjtt  v.  i  of'man,  70  Pa.  St.  T2,  explaining  12  Pa.  St.  101;  Railroad 
v.  ,S7jw£c,  28  Kan.  394,  42  Am.  Rep.  163. 

Attorneys. —  Holley  v.  Young,  68  Me.  215;  Saunders  v.  McCarthy, 
8  Allen   (Mass.),  42. 

The  admissions  of  an  attorney  may  be  either  oral  or  written. 
Loomis  v.  N.  Y.,  etc.,  R.  R.  Co.,  159  Mass.  39. 

Statute  of  limitations. —  The  paragraph  next  to  the  last  of  the  text 
(with  reference  to  the  statute  of  limitations)  is  based,  as  seen  in  the 
notes,  upon  English  statutes.  At  common  law  an  oral  acknowledg- 
ment has  the  same  effect  as  a  written  one.  Tn  the  absence  of  statute 
the  admissions  of  one  joint  contractor  start  the  running  of  the  stat- 
ute of  limitations  against  the  others  anew.  Shepley  v.  Watcrhouse, 
22  Me.  497;  Woonsocket  Inst.  v.  Ballon,  16  R.  I.  351. 

Sureties. —  Supporting  text.  Chelmsford  Co.  v.  Demarest,  7  Gray 
(Mass.),  1.  Compare  Bank  of  Brighton  v.  Smith,  12  Allen  (Mass.), 
243. 

Illustration  (a).— Green  v.  B.  &  L.  R.  R.  Co.,  128  Mass.  221;  B. 
<C-  M.  R.  R.  Co.  v.  Ordway,  140  Mass.  510;  Rockwell  v.  Taylor,  41 
Conn.  59. 

Illustration  (e). —  See  Harding  v.  Butler,  156  Mass.  34. 

Illustration  (h). —  Saunders  v.  McCarthy,  8  Allen   (Mass.).  553. 

Illustration  (i). —  Smith  v.  Aldrich,  12  Allen  (Mass.),  553;  McLel- 
lan  v.  Cox,  36  Me.  95. 

During  continuance  of  agency. —  The  declarations  must  be  made 
during  the  continuance  of  the  agency.  Brown  v.  Dutchess  County 
Mut.  Ins.  Co.,  71  N.  Y.  Supp.  670.  64  App.  Div.  9. 

A  written  statement  of  the  terms  of  a  lease  made  by  an  agent  leas- 
ing property  for  his  principal  after  his  agency  has  terminated  is  not 
admissible.     Moore  v.  Rankin,  67  N.  Y.  Supp.  179,  33  Misc.  Rep.  749. 

Executors  and  administrators. —  The  admissions  of  executors  or  ad- 
ministrators in  order  to  be  relevant  must  be  made  while  engaged  in 
their  representative  capacity.  More  v.  Finch,  65  Hun,  404,  48  N.  Y. 
St.  R.  23. 

Agents  —  Preliminary  proof  of  agency. —  The  court,  in  its  discre- 
tion, may  receive  evidence  of  the  admissions  first,  and  proof  of  the 
agency  later.    Lanahan  v.  Zeltner  Brewing  Co.,  20  Misc.  Rep.  551,  46 


124  A  DIGEST  OF  [Part  I. 

N.  Y.  Supp.  431,  affirming  20  Misc.  Rep.  712;   Smith  v.  Dodge,  19 
N.  Y.  St.  R.  292,  3  X.  Y.  Supp.  866. 

The  authority  of  an  agent  cannot  be  shown  by  his  admissions. 
Kaiser  v.  Hamburg-Bremen  Fire  Ins.  Co.  of  Hamburg  and  Bremen,  69 
N.  Y.  Supp    344,  59  App.  Div.  525. 

-    Husband  and  wife. —  A  husband  or  a  wife  is  not,  as  such,  the  agent 
of  the  other  party  to  the  relation.  Lay  Grae  v.  Peterson,  2  Sandf.  338. 

Report  to  principal  —  Modifying  text. —  An  agent's  letter  to  his 
principal,  detailing  the  final  settlement  of  an  account  he  was  author- 
ized to  effect,  after  the  agreement  was  concluded,  is  admissible  to 
prove  such  settlement  as  a  part  of  the  res  gestae.  Ballard  v.  Bev- 
eridge,  61  N.  Y.  Supp.  648,  45  App.  Div.  477. 

Corporation  officers  and  agents. —  The  rule  of  the  text  as  to  agents 
applies  to  the  agents  of  corporations.  Meislahn  v.  Irving  Nat.  Bank, 
70  N.  Y.  Supp.  988.  62  App.  Div.  231 ;  Vaughn  Mach.  Co.  v.  Quintard, 
59  X.  E.  1132,  affirming  55  N.  Y.  Supp.  1114,  37  App.  Div.  368. 

Public  agents. — As  to  declarations  of  supervisors,  see  Boynton  v. 
Phelps,  52  111.  210,  212. 

The  admissions  of  supervisors  are  not  competent.  Mann  v.  Sodo- 
Icat,  66  111.  App.  393. 

The  declarations  of  school  directors  not  then  in  office  are  not 
competent  as  against  the  school  district.  School  Directors  v.  ll"«Z- 
lace,  9  Brad.  312. 

The  declarations  of  county  commissioners  are  not  evidence  to 
bind  the  county.     County  of  La  Salle  v.  Simmons,  5  Gilm.  513. 

The  letter  of  a  deputy  revenue  collector  is  not  admissible  as 
against  his  principal.     Grimshaiv  v.  Paul,  76  111.   164. 

To  show  agency. — The  declarations  of  an  agent  are  not  admissible 
to  show  agency.  Mellor  v.  Carithers,  52  111.  App.  86;  M'hitcside 
v    Margarel,  51  111.  207. 

Agency  may  be  established  by  parol  evidence.  K.  B.  Co.  v.  Shan- 
non, 1  Gilm.  15;  Gadwell  v.  Meek,  17  111.  220;  O.  &  M.  B.  B.  Co. 
v.  Middleton,  20  111.  629;  Matheirs  v.  Hamilton,  23  111.  470;  Dur- 
ham v.  Gill,  48  111.  151;  L.  21.  Ins.  Co.  v.  Bell,  166  111.  400. 

One  who  asserts  that  an  agency  exists  has  the  burden  of  proving 
it.     Skakel  v.   Hennessey,  57  111.  App.  332. 

Persons  jointly  interested. —  The  admissions  of  one  jointly  inter- 
ested are  competent  against  the  others.  McMillan  v.  McDill,  110 
111.  47. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  125 

If  several  persons  are  jointly  interested,  having  a  community 
of  interest,  the  declarations  of  one  may  be  evidence  against  the 
rest.  Snyder  v.  Laframboise,  Breese,  343.  Compare  Rector  v. 
Rector,   3  Gilm.   105;    Hitt  v.   Ormsbec,   12   111.    166. 

The  admissions  of  one  joint  obligor  are  competent  against  the 
rest.      Rhode  v.    McLean,    9    Brad.   404. 

The  declarations  of  a  deceased  co-owner  are  competent  against 
the  surviving  owner.     Abend  v.  Mueller,   11   Brad.  257. 

The  declaration  of  one  tenant  in  common  is  not  competent 
against  the  other.     Keegan  v.  Kinnaire,   12   Brad.  484. 

In  a.  suit  by  a  consignor  against  a  common  carrier  for  nondeliv- 
ery, the  consignee's  declarations  made  after  delivery  are  not  admis- 
sible.    Ten  Eyke  v.  Harris,  47  111.  268. 

Principal  and  surety. —  The  admission  of  a  principal  as  against  a 
surety  is  evidence  against  himself  and  co-obligors.  Rhode  v.  Mc- 
Lean,   101   111.  467. 

Relatives. —  The  admissions  of  a  son  are  not  competent  to  bind 
the  father,  unless  the  agency  be  shown.  Reynolds  v.  Ferree,  86  111. 
570. 

The  admissions  of  a  father  are  incompetent  against  a  child. 
Cochran  v.   McDowell,   15   111.   11. 

The  declarations  of  a  wife  in  the  absence  of  the  husband  are 
not  competent  as  against  him.     Keegan  v.  Kinnaire,  12  Brad.  484. 

The  declarations  of  a  wife,  while  acting  as  the  agent  of  her  hus- 
band,  are   admissible.     Burl.  Ins.  Co.  v.   Wzieck,   16   111.  App.   296. 

In  a  suit  by  a  wife  against  a  third  party,  the  admissions  of  the 
husband  are  not  competent,  when  not  made  in  the  presence  of  the 
wife.     Fierce  v.  Hasbrouck,  49   111.   23. 

The  question  of  whether  or  not  the  husband  is  the  agent  of  the 
wife  is  for  the  jury.  Bongard  v.  Core,  82  111.  19;  Waggonseller 
v.  Rcxford,  2  Brad.  455. 

Trustees. —  A  trustee  cannot  make  an  admission  prejudicial  to  the 
trust.     Thomas  v.  Boicman,  29  111.  426,  30  111.   85. 

The  admissions  of  a  trustee  are  not  competent  as  against  the 
cestui  que  trust.    Bragg  v.  Geddes,  93  111.  39. 

Executors  and  administrators. —  Statements  made  by  an  adminis- 
trator before  his  appointment  are  not  admissions  provable  against 
the  estate.  Prudential  Ins.  Co.  v.  Fredericks,  41  111.  App.  419, 
423. 


126  A  DIGEST  OF  |Part  I. 

Coexecutors. —  The  admissions  of  deceased  coexecutors  are  not 
admissible  against  the  other  executor.    Berdan  v.  Allen,  10  Brad.  91. 

Guardian. —  The  statements  of  a  guardian  may  be  admissions  to 
bind  the  ward.     Bruslt,  v.  Blanchard,  19  111.  31. 

Joint  maker  of  notes. —  The  admissions  of  one  joint  maker  of  a 
note  are  not  admissible  against  another.  Rogers  v.  Anderson,  40 
Mich.  290.     Compare  Dawson  v.  Hall,  2  Mich.  390. 

New  Jersey. 

Agents. —  The  books  of  a  bank  which  has  been  acting  as  the  com- 
mon agent  of  two  parties  are  admissible  against  either.  Oliver  v. 
Phelps,  20  N.  J.  L.  180. 

Admissions  of  an  agent  are  admissible  against  the  principal  only 
when  they  are  a  part  of  a  transaction  within  the  scope  of  the  agent's 
authority.  Runic  v.  Ten  Eyck,  4  Zab.  75G;  Sussex  Ins.  Co.  v.  Wood- 
ruff, 26  N.  J.  L.  541;  Ashmore  v.  Pennsylvania  Towing  Co.,  38 
N.  J.  L.  13;  Blackman  v.  Railroad  Co.,  68  N.  J.  L.  1. 

When  one  puts  another  in  possession  of  goods  he  makes  the  latter 
his  agent  so  as  to  be  bound  by  the  latter*s  statements  to  persons 
contracting  on  the  faith  of  the  goods.  Bet  is  v.  Francis,  30  N.  J.  L. 
152. 

Agents  of  corporations. —  Admissions  of  a  general  agent  of  a  cor- 
poration.    Insurance  Co.  v.  Potts,  55  N.  J.  L.  158. 

Declarations  of  members  of  a  township  committee  not  admissions  by 
the  corporate  body.     Traction  Co.  v.  Horse  R.  Co.,  53  N.  J.  Eq.  163. 

Preliminary  proof  of  agency. — ■  Declarations  of  an  agent  not  ad- 
missible to  show  the  extent  of  his  authority.  Dowden  V.  Cryder,  55 
N.  J.  L.  329. 

When  the  fact  of  agency  lias  been  established,  the  admissions  of 
the  agent  are  competent  against  the  principal.  Gifford  v.  Landrine, 
37  N.  J.  Eq.  127,  628. 

Order  of  proof. —  A  verdict  will  not  be  set  aside  because  proof  of 
the  agency  was  not  made  until  after  the  acts  of  the  agent  had  been 
given  in  evidence.     Allen  v.  Bunting,  3  Harr.  299. 

Partners. —  Admission  by  one  partner  the  admission  of  the  other 
partner  also.  Hoboken  Bank  v.  Beckman,  37  N.  J.  Eq.  331,  reversing 
S.  C,  36  N.  J.  Eq.  84;  Ruckman  v.  Decker,  23  N.  J.  Eq.  283. 

Entries  in  the  books  made  by  one  partner  admissible  against  the 
others.  Dunnell  v.  Henderson,  23  N.  J.  Eq.  174;  Gulick  v.  Gulick, 
2  Gr.  578. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  127 

The  admissions  of  a  partner  after  the  dissolution  of  the  firm  are 
admissible  against  the  partners,  if  made  in  regard  to  past  trans- 
actions of  the  firm  as  such;  such  an  admission  may  remove  the  bar 
of  the  Statute  of  Limitations  on  a  firm  debt.  Merritt  v.  Day,  38 
N.  J.  L.  32.  Such  admissions  said  not  to  be  conclusive.  McElroy  v. 
Ludlam,  32  N.  J.  Eq.  828. 

Preliminary  proof  of  partnership. —  The  fact  of  partnership  cannot 
be  proved  by  the  admission  of  one  partner;  but  after  the  partnership 
is  proved,  the  admissions  of  one  are  admissible  against  the  others. 
Flannigin  v.  Champion,  2  N.  J.  Eq.  51;  Ruckman  v.  Decker,  23 
N.  J.  Eq.  283. 

Attorneys. —  Solemn  admissions  made  by  way  of  stipulations  of 
the  attorneys  in  court  are  admissible  in  a  subsequent  trial  of  the 
same  case.     Gallagher  v.  McBride,  66  N.  J.  L.  360. 

Husband  and  wife. —  Declarations  of  one  while  acting  as  the  agent 
of  the  other  are  admissible  against  the  other.  Boyles  v.  H'Eoiven, 
Pen.  677. 

Joint  contractors. —  The  admission  of  a  joint  covenantor  is  admis- 
sible against  the  others.  Walling  v.  Rosevelt,  1  Harr.  42;  Ruckman 
V.  Decker,  23  N.  J.  Eq.  283. 

The  admission  of  a  joint  debtor  is  admissible  as  against  all  the 
debtors  and  will  revive  the  remedy  barred  by  Statute  of  Limitations. 
Parker  v.  Bultencorth,  46  N.  J.  L.  244;  Black  v.  Lamb,  12  N.  J. 
Eq.  108. 

Time  of  making  admission. —  Statements  of  counsel  made  after 
ceasing  to  represent  the  client  are  not  admissible  against  the  latter. 
Janeway  v.  Skeritt,  30  N.  J.  L.  97. 


Maryland. 

Agents. —  Admissions  of  an  agent  are  admissible  against  the  prin- 
cipal if  made  in  the  course  of  execution  of  the  principal's  affairs. 
Whiteford  v.  Burckmyer,  1  Gill,  127;   Hutzler  v.  Lord,  64  Md.  534. 

The  agency  must  be  clearly  established  before  declarations  of  the 
agent  become  admissible  against  the  principal.  Rosenstock  v. 
Tormey,  32  Md.  169;  Marshall  v.  Haney,  4  Md.  498;  Rowland  v. 
Long,  45  Md.  439 ;  Mechanics'  Bank  v.  Bank  of  Balto.,  36  Md.  5. 

Before  the  admissions  of  an  alleged  agent  are  admissible  against  a 
party,  the  fact  of  agency  must  be  proved  by  other  evidence.  At  well 
v.  Miller,  11  Md.  348;  Newbold  v.  Bradstreet,  57  Md.  38. 


128  A  DIGEST  OF  [Part  I. 

Declarations  of  an  agent  within  the  scope  of  his  authority  are 
admissible  against  the  principal  as  part  of  the  res  gestce  when  they 
are  made  in  connection  with  the  transaction  of  the  principal's  busi- 
ness. Franklin  Bank  v.  Navigation  Co.,  11  G.  &  J.  28;  Phelps  v. 
Georges  Creek  R.  Co.,  60  Md.  536;  Bradford  v.  Williams,  2  Md.  Ch. 
1:  Thomas  v.  Sternheimer,  20  Md.  268;  Union  Banking  Co.  v. 
Gittings,  45  Md.  181. 

Declarations  of  an  agent  after  the  termination  of  his  agency, 
or  as  isolated  statements  and  acts  not  in  connection  with  the  prin- 
cipal's business,  are  not  admissible.  Dietrich  v.  Halls  Springs  Ry. 
Co.,  58  Md.  347. 

Declarations  of  an  agent  after  the  agency  is  terminated  are  not 
admissible.  Oioings  v.  Lou-,  5  G.  &  J.  135;  Franklin  Bank  v.  Navi- 
gation Co.,  11  G.  &  J.  28;  Phelps  v.  Georges  Creek  Co.,  60  Md.  536. 

Partners. —  The  admissions  of  one  partner  are  admissible  against 
the  others  on  partnership  matters.     Harryman  v.  Roberts,  52  Md.  64. 

Admissions  of  a  partner  after  dissolution  of  the  firm.  Neivman 
■■:.  McComas,  43  Md.  70. 

Officer  of  a  bank. — -Declarations  of  a  bank  president  that  certain 
money  brought  to  the  bank  belonged  to  the  plaintiff  are  not  ad- 
missible because  not  within  the  scope  of  his  authority.  City  Bank 
v.  Bateman,  7  H.  &  J.  104. 

Attorneys. —  Declarations  of  an  attorney  made  in  argument  of  a 
case  at  a  former  trial  are  not  admissible.  B.  &  0.  R.  R.  Co.  v.  Boyd, 
67  Md.  32. 

An  attorney  employed  to  collect  a  claim  has  no  authority  to  make 
admissions  for  his  client  as  to  the  distribution  of  the  amount  col- 
lected.    Lyon  v.  Hires,  91  Md.  411. 

Husband  and  wife. —  Declarations  by  a  wife  in  the  presence  of  her 
husband  as  to  why  a  deposit  was  made  in  their  joint  names  is  ad- 
missible.    Taylor  v.  Braicti,  65  Md.  366. 

Joint  contractors. —  The  acknowledgment  of  one  of  several  joint 
makers  of  a  promissory  note  takes  it  out  of  the  statute  as  against 
the  others.  And  this,  although  the  others  were  only  sureties  for 
the  first,  if  the  promise  was  not  collusively  made.  Schindel  V. 
Gates,  40  Md.   604. 

The  admission  of  an  administrator  or  executor  of  a  joint  con- 
tractor is  not  admissible  against  the  survivor.  Wilmer  v.  Harris, 
5  H.  &  J.  1. 

Executors  and  administrators. —  The  declarations  of  an  executor 
t«re  not  admissible  against  the  estate  if  made  before  his  qualification. 
Berry  v.  Safe  Deposit  Co.,  96  Md.  45. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  129 

The  admission  of  one  of  several  executors  is  admissible  to  remove 
the  bar  of  the  Statute  of  Limitations.  Stoner  v.  Devilbiss,  70  Md. 
144. 

The  admissions  of  an  executor  made  before  he  is  completely 
clothed  with  the  trust  are  not  competent  against  him  afterward. 
Webster  v.  Le  Compte,  74  Md.  249. 

Pennsylvania. 

Agents. —  Dicken  v.  Winters,  169  Pa.  126;  Detwiller  v.  Graham,  41 
Leg.  Int.  253;  Baker  v.  Gas  Co.,  157  Pa.  593;  Shafer  v.  Lacock, 
168  Pa.  497 ; Pennsylvania  R.  Co.  v.  Books,  57  Pa.  339  (officer  of  a 
corporation ) . 

Acts  and  admissions  of  an  agent  in  the  execution  of  his  agency 
are  admissible  against  the  principal.  The  Portland,  2  S.  &  R.  197; 
Shelhamer  v.  Thomas,  7  S.  &  R.  106;  Ilannay  v.  Stewart,  6  Watts, 
4S7;  Dick  V.  Cooper,  24  Pa.  217;  Woodwell  v.  Brown,  44  Pa.  121; 
Coal  Co.  v.  Decker,  82  Pa.  119. 

Declarations  by  an  agent  after  the  event  held  not  admissible  to 
show  negligence.  Giberson  v.  Mills  Co.,  174  Pa.  369;  American  8.  S. 
Co.  v.  Landreth,  102  Pa.  131.  See  also  Chapin  v.  Cambria  Iron  Co., 
145  Pa.  478. 

Admissions  of  an  agent  within  a  reasonable  time  after  the  trans- 
action are  admissible.     Transportation  Co.  v.  Riegel,  73  Pa.  72. 

Admissions  by  trustees  and  agents  of  a  congregation.  Magill  v. 
Kaufman,  4  S.  &  R.  317. 

Scope  of  agent's  authority. —  Admissions  of  one's  agent  as  to  mat- 
ters not  within  the  scope  of  his  authority  are  not  admissible. 
Monocacy  B.  Co.  v.  American  Mfg.  Co.,  83  Pa.  517;  Thread  Go.  V. 
Shoe  Mfg.  Co.,  115  Pa.  314;  Muller's  Estate,  13  Pa.  Co.  Ct.  183; 
Relief  Assn.  v.  Post,  122  Pa.  579. 

Admissions  of  an  agent  not  competent  against  the  principal  un- 
less made  in  the  execution  of  the  agency  or  with  authority.  Irvine 
v.  Buckaloe,  12  S.  &  R.  35;  Wilt  v.  Vickers,  8  Watts,  227;  Patton 
v.  Minesinger,  25  Pa.  393;  Railroad  Co.  v.  Books,  57  Pa.  339; 
Faiccett  v.  Bigley,  59  Pa.  411;  Railroad  Co.  v.  Plankroad  Co.,  71 
Pa.  350;  Bigley  v.  Williams,  80  Pa.  107. 

Statements  of  an  agent  as  to  his  principal's  motives  are  not  ad- 
missible.    Earns  v.  Tanner,  66  Pa.  297. 

Former  agents. —  Admissions  made  by  one  formerly  an  agent,  but 
no  longer  one,  are  not  admissible.     Life  Ins.  Co.  V.  Roth,  87  Pa.  409. 

0 


130  1    DIGEST  OF  [Pabt  I. 

Admissions  of  a  former  president  of  a  bank  not  admissible. 
Sterling  v.  Trading  Co.,  11  S.  &  R.  179;  Bank  v.  Davis,  6  W.  &  S. 
285 ;  Railroad  Co.  v.  Books,  57  Pa.  339. 

Fact  of  agency. —  Agency  cannot  be  proved  by  admissions  of  the 
agent,  but  he  is  himself  a  competent  witness  on  the  subject.  Lawall 
v.  Groman,  180  Pa.  532 ;  Whiting  v.  Lake,  91  Pa.  349. 

The  fact  of  agency  must  be  shown  before  admissions  of  the  sup- 
posed agent  are  competent.  Relief  Assn.  v.  Post,  122  Pa.  579; 
Long  v.  Insurance  Co.,  137  Pa.  335. 

Statements  of  an  agent  denying  the  agency  are  not  admissible 
against  the  principal.     Harrington  v.  Bronson,  161  Pa.  29G. 

It  is  not  error  to  admit  declarations  of  the  agent  as  against  his 
principal  if  they  are  followed  by  independent  evidence  of  the  agency 
itself.    Stewart  v.  Climax  Road  Mach.  Co.,  200  Pa.  611. 

Officers  of  a  corporation. —  O'Toole  v.  Publishing  Co.,  179  Pa.  271. 

To  ascertain  the  value  of  a  turnpike  taken  in  eminent  domain, 
the  returns  by  the  officers  of  the  road  company  to  the  State  as  to 
the  value  of  the  capital  stock  are  admissible.  Plankroad  Co.  v. 
Chester  Co.,  182  Pa.  40. 

Admissions  of  a  cashier  binding  on  the  bank.  Bank  v.  Tyler,  '6 
W.  &  S.  373. 

Attorneys  and  counselors. —  Sohns  v.  McCulloh,  5  Pa.  473. 

Admission  of  an  attorney  that  a  letter  is  genuine  binds  his  client. 
Overholzer  v.  McMichael,  10  Pa.  139. 

Partners. —  Admissions  of  one  partner  admissible  against  the 
others.  McCoy  v.  Lightner,  2  Watts,  347.  But  not  to  prove  the 
partnership  except  as  against  himself.  Edwards  v.  Tracy,  62  Pa. 
374;  McNeilan's  Estate,  167  Pa.  472. 

Admissions  of  one  partner  after  dissolution  are  not  admissible 
sigainst  the  others.  Tasscy  v.  Church.  4  W.  &  S.  141;  Hogg  V.  Or- 
gill,  34  Pa.  344. 

A  retiring  partner  is  not  bound  by  the  admissions  of  the  remain- 
ing partners  made  after  hi*  retirement.  Wilson  v.  Waugh,  101  Pa. 
233. 

Joint  owners  —  Authority. —  Campbell  v.  Galbraith,  1  Watts,  70. 

Statements  of  a  coclaimanl  arc  admissible  against  another  as 
to  boundary.     Moore  v.  Pearson,  0  W.  &  S.  51. 

Declarations  of  one  arc  admissible  against  another  jointly  inter- 
ested   with   him  to  show  fraud.      Schall  v.    Miller,   5   Whart.    156. 

Admissions  of  one  tenant  in  common  are  not  admissible  against 
another.     Pier  v.  Duff,  63  Pa.  59. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  131 

The  admission  of  one  devisee  or  legatee  is  not  admissible  against 
another.     Clark  v.  Morrison,  25  Pa.  453. 

Joint  debtors. —  Acknowledgment  or  part  payment  by  one  joint 
debtor  will  not  take  away  the  bar  of  the  Statute  of  Limitations  a» 
against  the  others.  Coleman  V.  Fobes,  22  Pa.  308;  Bush  v.  Stowell, 
71  Pa.  208. 

Debtor  and  surety. — •  Admissions  of  the  principal  debtor  are  admis- 
sible against  a  guarantor  or  a  surety.  Meade  v.  McDowell,  5  Binn. 
195 ;  Com.  v.  Kendig,  2  Pa.  448 ;  Respublica  v.  Davis,  3  Yeates,  128. 

Husband  and  wife. —  A  husband  is  not  his  wife's  agent  in  making 
declarations  as  to  her  interest  in  property.  Leedom  v.  Lcedom,  160 
Pa.  273;  Martin  v.  Rutt,  127  Pa.  380;  Evans  v.  Evans,  155  Pa. 
572.  Either  may  be  the  other's  agent  under  special  circumstances. 
See  Sharpless  v.  Dobbins,  1  Del.  Co.  R.  25;  Murphy  v.  Hubert,  10 
Pa.  50. 

Statements  of  a  wife  as  agent  of  her  husband.  Steel  v.  Thomp- 
son, 3  P.  &  VV.  34;  Peck  v.  Ward,  18  Pa.  506. 

Admissions  of  a  wife  in  her  husband's  absence  not  competent 
against  him.     Jones  v.  McKce,  3  Pa.  496. 


Article  18.* 
admission  by  strangers. 

Statements  by  strangers  to  a  proceeding  are  not  relevant 
as  against  the  parties  except  in  the  cases  hereinafter  men- 
tioned.19 

In  actions  against  sheriffs  for  not  executing  process 
against  debtors,  statements  of  the  debtor  admitting  his  debt 
to  be  due  to  the  execution  creditor  are  deemed  to  be  relevant 
as  against  the  sheriff.20 

*  See  Note  XII. 

WCoole  v.  Braharn,  1848,  3  Ex.  183.  For  a  third  exception,  which 
could  hardly  occur  now,  see  Clay  v.  Langslow,  1827,  M.  &  M.  45. 

20  Kempland  v.  Macauley,  1791,  Peake,  95;  Williams  v.  Bridges, 
1817,  2  Star.  42. 


132  A  DIGEST  Oh  [Part  1. 

In  actions  by  the  trustees  of  bankrupts  an  admission  by 
the  bankrupt  of  the  petitioning  creditor's  debt  is  deemed  to 
be  relevant  as  against  the  plaintiff.21 

AMERICAN   NOTE. 
General. 

Authorities. — 1  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  675 
et  seq.;  2  Taylor  on  Evidence   (Chamberlayne's  9th  ed. ),  sec.  759. 

Statements  by  strangers. —  Sustaining  the  text  as  to  their  in- 
admissibility generally.  Taylor  v.  Grand  Trunk  R.  R.  Co.,  48  N. 
H.  304,  2  Am.  Rep.  229;  Nelson  v.  Flint,  166  U.  S.  276;  Montgomery 
v.  Brush,  121  111.  513:  Lyon  v.  Manning,  133  Mass.  439;  Wilson  v. 
Boioden,  113  Mass.  422;  Kafer  v.  Harlow,  5  Allen  (Mass.),  348; 
Kline  v.  Baker,  100  Mass.  61 ;  Davis  v.  Kingsley,  13  Conn.  285. 

Private  boundaries. —  See  cases  under  Article  30. 

Actions  against  officers. —  (Second  paragraph  of  text.)  Hart  v. 
Stevenson,  25  Conn.  499.  506:  Strong  v.  Wheeler,  5  Pick.  (Mass.) 
410;  Pugh  v.  McRae,  2  Ala.  393. 

Bankruptcy. — Carnes  v.  White,  15  Gray  (Mass.).  378;  Wellington 
v.  Jackson,  121  Mass.  157;  Ramsbottom  v.  Phelps,  18  Conn.  278. 

Other  parties. —  White  Co.  v.  Gordon,  124  Ind.  495;  Olney  v.  Jack- 
son, 106  Ind.  286;  Broun  v.  Kenyon,  108  Ind.  283. 

The  admissions  of  third  parties  are  inadmissible.  Carter  v.  Hill, 
81  Mich.  275;  Rosenbury  v.  Angell,  6  Mich.  508;  Beebe  v.  Knapp, 
js  Mich.  53;  Merriit  v.  Stebbins,  86  Mich.  342. 


New  Jersey. 

Strangers. —  Parol  evidence  of  a  confession  of  a  paramour  not.  ad- 
nii->iljle  against  the  party  charged  with  adultery.  Bcrckmans  v. 
Berckmans,  16  X.  J.  Eq.  122;   Kloman  v.  Kloman,  62  N.  J.  Eq.  153. 

Action  against  a  constable. —  Second  paragraph  of  text.  Stout  v. 
Hopping,  1  Hal.  125. 

21  Jarrett  v.  Leonard,  1814,  2  M.  &  S.  265  (adapted  to  the  new  law 

of  bankruptcy) . 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  133 

Maryland. 

Authorities. —  Declarations  of  third  parties  are  generally  inadmis- 
sible. City  Bank  v.  Bateman,  1  H.  &  J.  104;  Forrester  v.  State,  46 
Md.  154:  Treuseh  v.  Clark,  51  Md.  162. 

Admissions  of  a  stranger  to  the  cause  at  issue  are  not  admissible. 
Herrick  V.  Sicomley,  56  Md.  439. 

Statements  of  third  parties  may  be  admissible  because  they  were 
a  part  of  the  transaction  in  question.  Kolb  v.  Whitely,  3  G.  &  J. 
188. 

Statements  by  one  representative  of  a  deceased  person  are  not 
binding  on  another  representative  of  such  deceased.  Walkup  v. 
Pratt,  5  H.  &  J.  51. 

In  an  action  against  a  bank  to  recover  money  paid  out  by  it  on 
alleged  forged  checks,  the  confession  of  the  forger  is  not  admissible. 
Hardy  v.  Bank,  51  Md.  562. 

In  a  suit  on  a  promise  given  in  consideration  for  the  forbearance 
on  plaintiff's  part  to  sue  on  a  claim  against  a  third  party,  to  prove 
the  existence  of  such  claim  the  admissions  of  the  third  party  ma\ 
be  introduced.     Boicen  v.  Tipton,  64  Md.  275. 

Pennsylvania. 

Statements  by  strangers. —  Sustaining  text.  Bovard  v.  Wallace, 
4  S.  &  R.  499;  Xussear  v.  Arnold,  13  S.  &  R.  323;  Boyd  v.  Ely,  8 
Watts,  66;  Dietrich  v.  Dietrich,  4  Watts,  167;  Haubergcr  v.  Root, 
6  W.  &  S.  431;  Shaw  V.  Boom  Co.,  125  Pa.  324:  Lawall  v.  Uroman, 
180   Pa.   532. 

Statements  of  the  insured  made  after  issuance  of  the  policy  af- 
fecting the  good  faith  of  bis  statements  in  the  application  are  not 
admissible  as  against  the  beneficiaries.  Hermany  v.  Mut.  Life  Assn., 
151  Pa.  17. 

Admissions  of  a  principal  not  competent  against  his  surety. 
Kickols  v.  Jones,  166  Pa.  599. 

Statements  by  a  stranger  not  in  the  presence  of  a  party  are  not 
admissible.     Chambers  v.  Davis,  3  Whart.  40. 

Declarations  of  one  legatee  not  admissible  against  the  others,  for 
their  interests  are  not  joint.  Clark  v.  Morrison,  25  Pa.  453;  Dotts 
v.  Fetzer,  9  Pa.  88. 

In  ejectment,  statements  by  a  father  are  not  evidence  against  the 
son,  in  the  absence  of  privity  of  estate.  Emery  v.  Harrison,  13  Pa. 
317. 


134  A  DIGEST  OF  [Part  I. 


Article  19.* 

admission  by  person  referred  to  by  party. 

When  a  party  to  any  proceeding  expressly  refers  to  any 
other  person  for  information  in  reference  to  a  matter  in 
dispute,  the  statements  of  that  other  person  may  be  admis- 
sions as  against  the  person  who  refers  to  him. 

Illustration. 

The  question  is,  whether  A  delivered  goods  to  B.  B  says  "  if  C  " 
(the  carman)  "will  say  that  he  delivered  the  goods,  I  will  pay  for 
them."     C's  answer  may  as  against  B  be  an  admission.22 

AMERICAN  NOTE. 

General. 

Authorities. —  10  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.), 
p.  701;   1  Greenleaf  on  Evidence   (loth  ed.),  sec.  182. 

Supporting  text. —  Chapman  v.  Twitchell,  37  Me.  59,  58  Am.  Dec. 
773;  Folsom  v.  Batchelder,  22  N.  H.  47;  Chadsey  v.  Greene,  24  Conn. 
562;  Gott  v.  Dinsmore,  111  Mass.  45;  Proctor  v.  Old  Colony  R.  R. 
Co.,  154  Mass.  251;  Com.  v.  Yose,  157  Mass.  393;  Beebe  v.  Knapp,  28 
Mich.  53;  Allen  v.  Killinger,  8  Wall.  480;  Rosenbury  v.  Angell,  6 
Mich.  508.  Compare  Adler- Goldman  Co.  v.  Adams  Express  Co.,  53 
Mo.  App.  284. 

The  reference  must  be  for  the  purpose  of  giving  information,  and 
the  statements  must  be  confined  to  the  matter  as  to  which  reference 
was  made.  Allen  v.  Killinger,  8  Wall.  480;  Rosenbury  v.  Angell,  6 
Mich.    508. 

*  See  Note  XIII. 
"•Daniel  v.  Pitt,  1808,  1  Camp.  366,  n.     See,  too,  R.  v.  Mallory, 
lfc«4,  13  Q.  B.  D.  33.     This  is  a  weaker  illustration  than  Daniel  v. 
Pitt. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  135 

A  conversation  through  an  interpreter  may  be  proved  as  an  admis- 
sion.    Com.  v.  Vose,  157  Mass.  393;   Miller  v.  Lathrop,  50  Minn.  91. 

The  statements  can  be  shown  only  so  far  as  they  refer  to  the  sub- 
ject of  the  injury.  Lambert  v.  People,  76  N.  Y.  220;  Duval  v.  Coven- 
hover,  4  Wend.  561. 

Communications  through  an  interpreter  may  be  proved  as  admis- 
sions.    Wright  v.  Maseras,  56  Barb.  521. 


Article  20.* 
admissions  made  without  prejudice. 

No  admission  is  deemed  to  be  relevant  in  any  civil  action 
if  it  is  made  either  upon  an  express  condition  that  evidence 
of  it  is  not  to  be  given,23  or  under  circumstances  from  which 
the  judge  infers  that  the  parties  agreed  together  that  evi- 
dence of  it  should  not  be  given,24  or  if  it  was  made  under 
duress.25 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  pp. 
715-717;  2  Taylor  on  Evidence  (Chamberlayne's  9th  ed.),  p.  5548. 

Compromises. —  Offers  of  compromise  are  not  admissible.  Green- 
field v.  Kennett,  69  N.  H.  419,  45  Atl.  233;  Daniels  v.  Woonsocket, 
11  R.  I.  4,  39  N.  E.  644:  Webber  v.  Dunn,  71  Me.  331 ;  Home  Ins.  Co. 
v.  Baltimore  Warehouse  Co.,  93  U.  S.  527,  23  L.  Ed.  868;  Harrison  v. 
Trickctt,  57  111  App.  515;  Reynolds  v.  Manning,  15  Md.  510,  526; 
Kassing  v.  Walter,  65  N.  W.  (la.)  832;  Fink  v.  Lancashire  Ins.  Co., 
00  Mo.  App.  673;  Greve  v.  Wood-Harmon  Co.,  173  Mass.  45;  Feibel- 


*  See  Note  XIV. 

23  Cory  v.  Bretton,  1830,  4  C.  &  P.  462. 

24  Paddock  v.  Forester,  1842,  3  M.  &  G.  903. 

25  titockfleth  v.  De  Tastet,  1814,  per  Ellenborough,  C.  J.,  4  Camp.  10. 


136  A.  DIGEST  OF  [Part  I. 

man  v.  Manchester  Fire  Ins.  Co.,  108  Ala.  180,  19  So.  540;  Fowles  v. 
Allen,  G4  Conn.  351;  Perkins  v.  Concord  R.  R.  Co.,  44  N.  H.  223; 
Montgomery  v.  Allen,  84  Mich.  656;  Louisville,  etc.,  R.  Co.  v.  Wright, 
115  Ind.  378;  Reynolds  v.  Manning,  15  Md.  510. 

But  admissions  of  facts  in  the  coarse  of  conversations  with  refer- 
ence to  compromise  are  competent.  Beaudette  v.  Gagne,  87  Me.  534r 
33  Atl.  23;  Eastman  v.  Amoskeag  Mfg.  Co.,  44  N.  H.  143,  82  Am. 
Dec.  201;  Jenness  v.  Jones,  44  Atl.  (N.  H.)  607;  Stanford  v.  Bates, 
22  Vt.  546 ;  Boon  v.  Rovey,  49  Vt.  293 ;  Chickeiing  v.  Brooks,  61  Vt. 
554,  18  Atl.  144;  Hartford  Bridge  Co.  v.  Granger,  4  Conn.  148 ;  Fuller 
v.  Hampton,  5  Conn.  426 ;  Hotoard  Ins.  Co.  v.  Z7ope  Mut.  Ins.  Co., 
22  Conn.  403 ;  Broschart  v.  Tuttle,  59  Conn.  24 ;  Bassett  v.  Shares,  63 
Conn.  44 ;  Arthur  v.  James,  28  Pa.  St.  236 ;  McNiel  v.  Holbrook,  37 
U.  S.  (12  Pet.)  84,  9  L.  Ed.  1009;  Durgin  v.  Somers,  117  Mass.  55; 
Afcers  v.  Demond,  103  Mass.  318;  Suans  v.  £mt£7i,  21  Ky.  (5  T.  B. 
Mon.)  363,  17  Am.  Dec.  74;  Akers  v.  Kirk,  91  Ga.  590,  18  S.  E.  366; 
Thorn  v.  Hess,  51  111.  App.  274;  Binford  v.  Young,  115  Ind.  174,  16 
N.  E.  142 ;  Bank  v.  Seymour,  64  Mich.  59,  31  N.  W.  140. 

As  to  the  admissibility  of  facts  discovered  in  consequence  of  an 
inadmissible  confession,  see  note  to  Whitely  v.  Miss.  (Miss.),  53 
L.  R.  A.  402. 

Duress. —  Sustaining  text.     Tilley  v.  Damon,  11  Cush.  247. 

The  admission  need  not  be  voluntary  in  the  sense  in  which  a  con- 
fession must  be  voluntary.     Newhall  v.  Jenkins,  2  Gray  (Mass.),  562. 

The  fact  that  one  was  compelled  to  testify  in  an  earlier  suit  does 
not  render  his  admissions  thus  made  incompetent  because  of  duress. 
Tooker  v.  Gonner,  2  Hilt.  71. 

Facts. —  But  admissions  of  facts,  even  though  in  the  course  of 
conversations  about  a  compromise,  are  admissible.  Thorn  v.  Hess, 
51  111.  App.  274. 

New  Jersey. 

Compromises. —  Offers  of  compromise  not  admissible  against  the 
party.  Miller  v.  Halsey,  14  N.  J.  L.  48;  Wrege  v.  Westcott,  30 
N.  J.  L.  212;  Railway  Co.  v.  Currie,  54  N.  J.  Eq.  84;  Gardner  v. 
Short,  19  N.  J.  Eq.  341;  Croiother  v.  Lloyd,  31  N.  J.  L.  395. 

An  offer  made  by  one  party  to  another  is  competent  evidence 
against  the  former,  when  it  was  not  stated  that  it  was  made  with- 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  137 

out  prejudice  and  was  not  in  compromise  of  a  claim.     Richardson 
v.  Pottery  Co.,  63  N.  J.  L.  248. 

Maryland. 

Compromises. —  Offers  of  compromise  are  not  admissible.  Reynolds 
V.  Ma/nning,  15  Md.  510,  526;  Groff  v.  Hansel,  33  Md.  161. 

Unaccepted  offer  of  a  compromise  not  admissible.  Furnace  Co. 
v.  Hooper,  90  Md.  390. 

An  offer  of  settlement  of  a  suit  pending  is  not  admissible,  even 
though  nothing  was  said  as  to  its  being  without  prejudice.  Rey- 
nolds v.  Manning,  15  Md.  510. 

Statements  made  to  induce  the  other  to  make  an  offer  of  com- 
promise are  admissible.     Seldner  v.  Smith,  40  Md.  602. 

Admissions  made  during  an  attempt  to  compromise  are  compe- 
tent evidence  unless  made  without  prejudice  or  made  as  mere  con- 
cessions to  induce  the  compromise.     Calvert  v.  Fricbus,  48  Md.  44. 

A  claim  made,  but  not  accepted,  is  not  admissible  against  the 
one  making  it.  Pentz  v.  Fire  Ins.  Co.,  92  Md.  441.  But  an  offer 
to  settle  a  loss,  not  made  by  way  of  compromise,  is  admissible  to 
show  that  the  company  did  not  refuse  to  pay  because  of  failure 
to  furnish  proof  of  loss.     Id. 

Pennsylvania. 

Compromises. —  Offers  of  compromise  are  not  admissible.  Slocum 
V.  Perkins,  3  S.  &  R.  295;  Spence  v.  Spence,  4  Watts,  165;  Arthur 
v.  James,  28  Pa.  236;  Tryon  v.  Miller,  1  Whart.  11. 

Letters  written  in  a  negotiation  for  a  settlement  are  not  admis- 
sible.   Fisher  v.  Life  Assn.,  188  Pa.  1. 

Admissions  made  in  negotiations  for  a  compromise  not  effected 
are  not  admissible.     Spence  v.  Spence,  4  Watts,  165. 

The  admission  of  an  independent  fact,  though  made  during  nego- 
tiations for  a  compromise,  is  admissible.  Sailor  v.  Hertzog,  2  Pa. 
182;  Arthur  v.  James,  28  Pa.  236. 

Admissions  at  the  time  of  an  offer  of  compromise,  but  not  a 
part  of  it,  are  admissible.     Sailor  v.  Hertzog,  2  Pa.  182. 

When  a  part  of  a  conversation  has  been  offered,  the  remainder 
becomes  admissible  even  though  it  may  contain  an  offer  of  a  com- 
promise.    Bascom  v.  Stove  &  Mfg.  Co.,  152  Pa.  427. 


138  A  DIGEST  OF  [Part  I. 


Article  21. 
confessions  defined. 

A  confession  is  an  admission  made  at  any  time  by  a 
person  charged  with  a  crime,  stating  or  suggesting  the  in- 
ference, that  he  committed  that  crime.  Confessions,  if 
voluntary,  are  deemed  to  be  relevant  facts  as  against  the 
persons  who  make  them  only. 

AMERICAN  NOTE. 
General. 

Authorities. —  6  Am.  &  Eng.  Encyclopaedia  of  Law  ( 2d  ed. ) ,  p.  520 
et  seq.;  Underhill  on  Evidence,  sec.  88  et  seq.;  U.  S.  v.  Douglas,  2 
Blatchf.  207;  17.  S.  v.  White,  5  Cranch  C.  C.  38;  Gaines  v.  Rolf,  12 
How.  472,  539;  Hopt  v.  Utah,  110  U.  S.  574,  583,  4  S.  C.  Rep.  202. 

Confession  denned  in  State  v.  Carr,  53  Vt.  37. 

Confession  to  be.  admitted  must  be  voluntary.  State  v.  Walker, 
34  Vt.  296;  State  v.  York,  37  N.  H.  175;  Com.  v.  Nott,  135  Mass. 
209;  Com.  v.  Myers,  160  Mass.  530;  Com.  v.  Morey,  1  Gray  (Mass.), 
461;  Com.  v.  Flood,  152  Mass.  529,  25  N.  E.  971.  Contra,  State  v. 
Jenkins,  2  Tyler   (Vt.),  377. 

Remote  and  obscure  allusions  by  the  accused  to  tbe  act  in  con- 
templation are  admissible  on  a  criminal  prosecution,  as  tending  to 
show  an  existing  disposition  or  design.  State  v.  Hoyt,  47  Conn. 
538,  539. 

Statements  of  the  accused  in  the  nature  of  a  confession  are  ad- 
missible in  evidence,  upon  the  ground  that  a  party's  conduct  in 
respect  to  the  matter  in  dispute,  whether  exhibited  by  acts,  speech, 
<>r  writing,  which  is  clearly  inconsistent  with  his  contention,  is  a 
fact  relevant  to  the  issue.  Such  statements,  however,  are  not  in 
themselves  testimony,  but  are  matters  to  be  proved  as  independent 
facts,  the  probative  force  of  which  must  depend  upon  the  circum- 
stances of  each  particular  case.     State  v.  Willis,  71  Conn.  204. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  139 

Distinguished  from  admissions. —  People  v.  Hickman,  113  Cal.  80, 
86;  State  v.  Heidenreich,  29  Ore.  381;  Fletcher  v.  State,  90  Ga.  468; 
Taylor  v.  flfafe,  37  Neb.  788. 

By  silence. —  Keeping  silence  under  certain  circumstances  may 
be  an  implied  confession.  Sparf  v.  V.  S.,  156  U.  S.  57;  Com.  v. 
McCabe,  163  Mass.  98:  Richards  v.  State,  82  Wis.  172.  Even  when 
under  arrest.  Murphy  v.  State,  36  0.  St.  628 ;  Aclcerson  v.  People, 
124  111.  563.  Contra,  State  v.  Howard,  102  Mo.  142;  Com.  v.  McDer- 
mott,  123  Mass.  440. 

Proof  of  corpus  delicti. —  In  order  to  convict  on  the  extra-judicial 
confession  of  the  accused,  the  corpus  delicti  must  be  proved  by  other 
evidence.  Robinson's  Elementary  Law,  sec.  511;  Bergen  v.  People, 
17  111.  426,  65  Am.  Dec.  672;  Campbell  v.  People,  159  111.  9;  Gray  v. 
Com.,  101  Pa.  St.  380,  47  Am.  Rep.  733:  Stringfellow  v.  State,  26 
Miss.  157,  163,  59  Am.  Dec.  247:  People  v.  Lane,  49  Mich.  340:  Guild's 
Case,  5  Halst.  (N.  J.)  163,  185,  18  Am.  Dec.  404;  State  v.  Knowles, 
48  la.  598;  Blackburn  v.  State,  23  O.  St.  146;  People  v.  Simonsen, 
107  Cal.  345;  Ryan  v.  State,  100  Ala.  94:  Clark  on  Criminal  Law, 
p.  130;  6  Am.  &  Eng.  Ency.  of  Law,  p.  569.  But  see  Bishop's  New 
Crim.  Pro.,  par.  1056. 

The  rule  is  otherwise  as  to  judicial  confessions.  Dantz  v.  State,  87 
Ind.  398;  State  v.  Lamb,  28  Mo.  218:  Hallinger  v.  Davis,  146  U.  S. 
314:  Can  v.  Holstine,  132  Fa.  St.  337. 

Last  paragraph  of  text. —  A  confession  is  admissible  only  against 
the  person  who  made  it.  Com.  v.  Ingraham,  7  Gray  (Mass.),  46; 
State  v.  Albert,  73  Mo.  347;  People  v.  Stevens,  47  Mich.  411;  Acker- 
son  v.  People,  124  111.  563:  Fife  v.  Com.,  29  Pa.  St.  429;  /Sparf  v. 
U.  S..  156  U.  S.  51,  15  S.  C.  Rep.  273. 

Definition. —  People  v.  Mondon,  38  Hun.  197. 

Must  be  voluntary. —  People  v.  Wentz,  37  N.  Y.  303 ;  People  v. 
Phillips.  42  N.  Y.  200 ;  O'Brien  v.  People,  48  Barb.  274 ;  Cox  v.  People, 
80  N.  Y.  500;  People  v.  McGloin,  91  N.  Y.  242:  People  v.  Burns,  2 
Park.  Cr.  34;  People  v.  Thorns.  3  Park.  Cr.  256:  Hartung  v. 
People,  4  Park.  Cr.  319:  Ward  v.  People,  3  Hill.  395:  People 
v.  J/c.tf  a/ton,  15  N.  Y.  384:  Foxoler  v.  People,  18  How.  Pr.  493;  People 
v.  Mardon,  103  N.  Y.  211.  57  Am.  Rep.  709:  People  v.  McCallam,  103 
N.  Y.  587 ;  Peop?e  v.  Druse,  103  N.  Y.  655. 

As  to  the  reason  of  the  rule  that  only  voluntary  confessions  are 
admissible.  People  v.  Wentz,  37  N.  Y.  303;  People  v.  McMahon,  15 
NT.  Y.  384. 


140  A  DIGEST  OF  [Part  I. 

By  silence. —  A  confession  may  be  implied  from  silence.  Kelley  v. 
People,  55  N.  Y.  572,  14  Am.  Rep.  342;  People  v.  Lewis,  16  N.  Y. 
Supp.  881.  Even  though  the  accused  is  under  arrest.  Kelley  v. 
People,  55  N.  Y.  565. 

There  must  however  be  an  opportunity  to  speak.  Hence,  no  im- 
plication is  to  be  drawn  from  silence  at  a  coroner's  inquest.  People 
v.  Willett,  92  N.  Y.  29. 

By  conduct. —  Confessions  may  be  implied  from  conduct.  Conkey 
v.  People,  1  Abb.  App.  Dec.  418;  People  v.  O'Neil,  49  Hun,  422,  17 
N.  Y.  St.  R.  956,  112  N.  Y.  355;  Greenleaf  v.  People,  85  N.  Y.  75,  39 
Am.  Rep.  636.  Or  from  the  act  of  a  third  person  done  in  the  pres- 
ence of  the  accused.     Hochreiter  v.  People,  2  Abb.  App.  Dec.  363. 

Explanatory  facts. —  Facts  explaining  or  qualifying  a  confession 
or  which  indicate  its  falsity  are  admissible.  People  v.  Fox,  121  N. 
Y.  449. 

Form  of  confession. —  A  confession  contained  in  a  letter  may  In- 
admissible.   People  v.  Cassidy,  133  X.  Y.  612. 

Independent  proof  of  corpus  delicti. —  A  confession  will  justify  a 
conviction  only  if  there  is  independent  proof  that  the  crime  has  been 
committed.  May  v.  People,  92  111.  343;  South  v.  People,  98  111.  261; 
Bergen  v.  People,  17  111.  426,  65  Am.  Dec.  672;  Campbell  v.  People, 
159  111.  9. 

Last  paragraph  of  text. —  A  confession  is  admissible  only  against 
the  person  who  made  it.     Ackerson  v.  People,  124  111.  563. 

New  Jersey. 

Confessions  must  be  voluntary. —  See  cases  in  succeeding  note. 

In  divorce. —  Confessions  in  divorce  cases  to  be  received  with  cau- 
tion. Clutch  v.  Clutch,  1  N.  J.  Eq.  474;  Miller  v.  Miller,  2  N.  J.  Eq. 
139:  Jones  v.  Jones,  17  N.  J.  Eq.  351;  Derby  v.  Derby,  21  X.  J.  Eq. 
36. 

Confessions  of  the  particeps  criminis  are  not  admissible  to  prove 
adultery.     Berckmans  v.   Berckmans,  16  N.  J.  Eq.  122. 

Maryland. 

Authorities. —  Voluntary  declarations  of  the  accused  as  to  the 
crime  in  question  are  admissible.  Lamb  v.  State,  66  Z\id.  285;  Boss 
v.  Stale,  67  Md.  286. 

A  confession  is  admissible  if  there  is  no  reason  to  doubt  its  truth. 
If  there  was  such  inducement  of  hope  or  fear  as  to  cast  doubt  upon 


€hap.  IV.]  THE  LAW  OF  EVIDENCE.  141 

the  truth  of  the  confession,  it  is  not  admissible.  State  v.  F'reeman, 
12  Md.  100. 

The  confession  of  a  forger  is  not  admissible  in  a  civil  action 
against  a  bank  to  recover  funds  paid  out  by  it  on  the  alleged  forged 
checks.     Hardy  v.  Bank,  51  Md.  562. 

Conduct  from  which  complicity  in  a  crime  may  be  inferred  is 
admissible.     Bloomer  v.  State,  48  Md.   521. 

Pennsylvania. 

Authorities. —  A  confession  not  admitting  guilt  but  merely  show- 
ing guilty  knowledge  of  the  crime  is  not  admissible.  Com.  v.  Clark, 
130  Pa.   641. 

A  confession  through  the  soil  pipes  of  a  prison  admitted.  Brown 
v.   Com.,  76  Pa.  319. 

Confession  is  evidence  of  the  first  marriage  in  trial  for  bigamy. 
Com.  v.  Murtaugh,  1  Ash.  272;  Com.  v.  Wyman,  3  Brewst.  338. 

A  confession  of  one  of  several  jointly  tried  is  admissible,  though 
it  may  tend  to  prejudice  the  others.     Fife  v.  Coin.,  2!)  Pa.  429. 

Silence. —  A  confession  may  be  implied  from  silence  when  one  is 
charged  with  a  crime  under  circumstances  justifying  the  expectation 
of  a  reply.     EUingcr  v.  Com.,  9S  Pa.  33.8. 

Proof  of  corpus  delicti. —  In  order  to  convict  on  the  extrajudicial 
confession  of  the  accused,  the  corpus  delicti  must  be  proved  by  other 
evidence.  Gray  v.  Com..  101  Pa.  380,  47  Am.  Rep.  733;  Com.  v. 
Hanlon,  8  Phila.  401. 

The  rule  is  otherwise  as  to  judicial  confessions.  Com.  v.  Hoist  ine, 
132  Pa.  337. 

Last  paragraph  of  text. —  A  confession  is  admissible  only  against 
the  person  who  made  it.     Fife  v.  Com.,  29  Pa.  429. 

Article  22.* 

confession  caused  by  inducement,  threat,  or  promise, 
when  irrelevant  in  criminal  proceeding. 

No  confession  is  deemed  to  be  voluntary  if  it  appears  to 
the  judge  to  have  been  caused  by  any  inducement,  threat, 
or   promise,  proceeding  from    a  person  in    authority,  and 

*  See  Note  XV. 


142  A  DIGEST  OF  [Pabt  I. 

having  reference  to  the  charge  against  the  accused  person, 
whether  addressed  to  him  directly  or  brought  to  his  know- 
ledge indirectly; 

and  if  (in  the  opinion  of  the  judge)26  such  inducement, 
threat,  or  promise,  gave  the  accused  person  reasonable 
grounds  for  supposing  that  by  making  a  confession  he 
would  gain  some  advantage  or  avoid  some  evil  in  reference 
to  the  proceedings  against  him. 

A  confession  is  not  involuntary,  only  because  it  appears 
to  have  been  caused  by  the  exhortations  of  a  person  in 
authority  to  make  it  as  a  matter  of  religious  duty,  or  by  an 
inducement  collateral  to  the  proceeding,  or  by  inducements 
held  out  by  a  person  not  in  authority. 

The  prosecutor,  officers  of  justice  having  the  prisoner  in 
custody,  magistrates,  and  other  persons  in  similar  positions, 

26  It  is  not  easy  to  reconcile  the  cases  on  this  subject.  In  It.  v. 
Baldry,  1852,  2  Den.  430,  the  constable  told  the  prisoner  that  he  need 
not  say  anything  to  criminate  himself,  but  that  what  he  did  say  would 
be  taken  down  and  used  as  evidence  against  him.  It  was  held  that 
this  was  not  an  inducement,  though  there  were  earlier  cases  which 
treated  it  as  such.  In  R.  v.  Jarvis,  1867,  1  C.  C.  R.  96,  the  following 
was  held  not  to  be  an  inducement:  "  I  think  it  is  right  I  should  tell 
you  that  besidea  being  in  the  presence  of  my  brother  and  myself" 
(prisoner's  master),  "you  are  in  the  presence  of  two  officers  of  the 
public,  and  I  should  advise  you  that  to  any  question  that  may  be  put 
to  you,  you  will  answer  truthfully,  so  that  if  you  have  committed  a 
fault  you  may  not  add  to  it  by  stating  what  is  untrue.  Take  care. 
We  know  more  than  you  think  we  know. —  So  you  had  better  be  good 
boys  and  tell  the  truth."  On  the  other  hand,  in  R.  v.  Reeve,  1872,  1 
C.  C.  R.  .301.  Hi,,  words,  "  You  had  better,  as  good  boys,  tell  the  truth:" 
in  R.  v.  Fennel!,  1881,  7  Q.  B.  D.  147,  "  The  inspector  tells  me  you  are 
making  housebreaking  implements;  if  that  is  so,  you  had  better  tell 
the  truth,  it  may  be  better  for  you,"  were  held  to  exclude  the  confes- 
sion  which  followed.  There  are  later  cases  (unreported)  which  follow 
rhp^. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  143 

are  persons  in  authority.  The  master  of  the  prisoner  is  not 
as  such  a  person  in  authority  if  the  crime  of  which  the 
person  making  the  confession  is  accused  was  not  committed 
against  him. 

A  confession  is  deemed  to  be  voluntary  if  (in  the  opinion 
of  the  judge)  it  is  shown  to  have  been  made  after  the  com- 
plete removal  of  the  impression  produced  by  any  induce- 
ment, threat,  or  promise  which  would  otherwise  render  it 
involuntary. 

Before  a  confession  can  be  treated  as  relevant  in  a  crim- 
inal trial  it  must  be  proved  affirmatively  that  it  was  free 
and  voluntary.27 

Facts  discovered  in  consequence  of  confessions  improp- 
erly obtained,  and  so  much  of  such  confessions  as  distinctly 
relate  to  such  facts,  may  be  proved. 

Illustrations. 

(a)  The  question  is,  whether  A  murdered  B. 

A  handbill  issued  by  the  Secretary  of  State,  promising  a  reward  and 
pardon  to  any  accomplice  who  would  confess,  is  brought  to  the  know- 
ledge of  A,  who,  under  the  influence  of  the  hope  of  pardon,  makes  a 
confession.     This  confession  is  not  voluntary.28 

( b )  A  being  charged  with  the  murder  of  B,  the  chaplain  of  the  gaol 
reads  the  Commination  Service  to  A,  and  exhorts  him  upon  religious 
grounds  to  confess  his  sins.  A,  in  consequence,  makes  a  confession. 
This  confession  is  voluntary .29 

2T  R.  v.  Thompson,  [1893],  2  Q.  B.  12.  The  early  authorities  on  the 
admission  of  confessions  are  summed  up  in  this  case  by  Cave,  J.,  who 
describes  a  "  free  and  voluntary  statement,"  as  one  which  was  not 
"  preceded  by  any  inducement  to  make  a  statement  held  out  by  a  per- 
son in  authority." 

28  R.  v.  Boswell,  1842,  Car.  &  Marsh.  584. 

29  R.  v.  Gilham,  1828,  1  Moo.  C.  C.  186.  In  this  case  the  exhorta- 
tion was  that  the  accused  man  should  confess  "  to  God,"  but  it  seems 


144  A  DIGEST  OF  [Part  I. 

(c)  The  gaoler  promises  to  allow  A,  who  is  accused  of  a  crime,  to 
see  his  wife,  if  he  will  tell  where  the  property  is.  A  does  so.  This  is 
a  voluntary  confession.30 

(d)  A  is  accused  of  child  murder.  Her  mistress  holds  out  an  in- 
ducement to  her  to  confess,  and  she  makes  a  confession.  This  i3  a 
voluntary  confession,  because  her  mistress  is  not  a  person  in  author- 
ity^ 

(e)  A  is  accused  of  the  murder  of  B.  C,  a  magistrate,  tries  to  in- 
duce A  to  confess  by  promising  to  try  to  get  him  a  pardon  if  he  does  so. 
The  Secretary  of  State  informs  C  that  no  pardon  can  be  granted,  and 
this  is  communicated  to  A.  After  that  A  makes  a  statement.  This  is 
a  voluntary  confession.32 

if)  A,  accused  of  burglary,  makes  a  confession  to  a  policeman  under 
an  inducement  which  prevents  it  from  being  voluntary.  Part  of  it  is 
that  A  had  thrown  a  lantern  into  a  certain  pond.  The  fact  that  he 
said  so,  and  that  the  lantern  was  found  in  the  pond  in  consequence, 
may  be  proved.33 

AMERICAN   NOTE. 
General. 

Authorities. —  6  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  525 
et  seq.;  Underhill  on  Evidence,  sec.  88  et  seq. 

Burden  of  proof. —  In  some  States  the  burden  of  showing  that  a 
confession  is  not  voluntary  is  on  the  defendant.  It  is  prima  facie 
admissible.     Com.  v.   Sego,    125   Mass.   213;    Rufer  v.   State,  25   0. 

from  parts  of  the  case  that  he  was  urged  also  to  confess  to  man  "  to 
repair  any  injury  done  to  the  laws  of  his  country."  According  to  the 
practice  at  that  time,  no  reasons  are  given  for  the  judgment.  The 
principle  seems  to  be  that  a  man  is  not  likely  to  tell  a  falsehood  in 
such  cases,  from  religious  motives.  The  case  is  sometimes  cited  as  an 
authority  for  the  proposition  that  a  clergyman  may  be  compelled  to 
reveal  confessions  made  to  him  professionally.  It  has  nothing  to  do 
with  tli6  subject. 

30  R.  v.  Lloyd,  1834,  6  C.  &  P.  393. 

31  R.  v.  Moore,  1852,  2  Den.  C.  C.  522. 

32  7?.  v.  Cleices,  1830,  4  C.  &  P.  221. 

33  R.  v.  Gould,  1840,  9  C.  &  P.  364.  This  is  not  consistent,  so  far  as 
the  proof  of  the  words  goes,  with  R.  v.  Wartmckshall,  1783,  1  Leach, 
263. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  145 

St.  464;  State  v.  Meyers,  99  Mo.  107;  State  v.  Davis,  34  La.  Ann. 
351.  In  others  the  public  prosecutor  must  show  it  to  be  voluntary. 
Bradford  v.  State,  104  Ala.  68;  Wyre  v.  State,  95  Ga.  467;  People 
v.  Sato,  49  Cal.  67 ;  Nicholson  v.  State,  38  Md.  140. 

If  the  evidence  is  conflicting  he  may  admit  it  with  instructions 
to  disregard  it  if  they  find  it  was  not  voluntary.  Com.  v.  Preece, 
140  Mass.  276;  Com.  v.  Burrough,  162  Mass.  512;  Com.  v.  Howe,  9 
Gray  (Mass.),  110;  Com.  v.  Smith,  119  Mass.  305;  Com.  v.  Piper, 
120  Mass.  185;  Com.  v.  Cuffee,  108  Mass.  285;  Com.  v.  Nott,  135 
Mass.  269;  Wilson  v.  U.  S.,  162  U.  S.  613;  Burdge  v.  State,  53  O  St. 
512:  Ellis  v.  State,  65  Miss.  44. 

The  inducement. —  A  confession  is  admissible  if  it  appears  that  the 
inducement  had  no  effect.  Com.  v.  Crocker,  108  Mass.  464.  See,  also, 
Com.  v.  Knapp,  9  Pick.  (Mass.)  503. 

A  plea  of  guilty  before  a  committing  magistrate  is  admissible  as 
a  confession.     Com.  v.  Brown,  150  Mass.  330. 

A  statement  by  an  officer  that  "  the  more  lies  one  tells  in  such 
<*ases,  the  deeper  one  gets  into  the  mud  "  does  not  render  a  confes- 
sion inadmissible.     Com.  v.  Mitchell,  117  Mass.  431. 

The  mere  threat  of  conviction  does  not  render  a  confession  in- 
admissible.    Com.  v.  Whittemore,  11  Gray   (Mass.),  201. 

The  fact  of  custody  does  not  prevent  a  confession  being  voluntary 
Com.  v.  Cuffee,  108  Mass.  285. 

The  fact  that  the  prisoner  is  in  irons  does  not  prevent  a  confes- 
sion being  voluntary.     State  v.  Gorham,  67  Vt.  365. 

The  mere  fact  that  a  confession  is  made  through  hope  of  favor 
does  not  affect  its  admissibility  so  long  as  the  hope  was  not  induced. 
Com.  v.  Sego,  125  Mass.  210,  213. 

Where  one  agrees  to  turn  State's  evidence,  under  a  promise  of 
immunity  from  prosecution,  but  refuses  subsequently  to  testify,  his 
confession  is  admissible.  Com.  v.  Knapp,  10  Pick.  (Mass.)  477; 
U.  S.  v.  Hinz,  35  Fed.  Rep.  272;  State  v.  Moran,  15  Ore.  262. 

The  inducement  must  be  calculated  to  induce  hope  or  fear.  Com. 
v.  Sego,  125  Mass.  210;  Com.  v.  Morey,  1  Gray  (Mass.),  461. 

When  voluntary. —  Sustaining  the  first  paragraph  of  the  text : 
Com.  v.  Chabbock,  1  Mass.  144;  Com.  v.  Knapp,  9  Pick.  (Mass.)  496, 
20  Am.  Dec.  491 ;  State  v.  Potter,  18  Conn.  178 ;  State  v.  Thompson, 
Kirby    (Conn.),  345. 

Confessions  not  voluntary  are  excluded,  "  not  because  any  wrong 

10 


146  A  DIGEST  OF  [Part  I. 

is  done  to  the  prisoner  in  using  them,  but  because  he  may  be  in- 
duced by  the  pressure  of  hope  or  fear  to  admit  facts  unfavorable 
to  him  without  regard  to  their  truth  in  order  to  obtain  the  prom- 
ised relief  or  avoid  the  threatened  danger."  Com.  v.  Morey,  1 
Gray   (Mass.),  462. 

If  there  were  any  indication  that  the  prisoner  was  not  perfectly 
cool  and  self-possessed,  so  as  to  render  his  statements  unreliable, 
that  would  seem  to  be  a  matter  affecting  the  weight  rather  than 
the   admissibility   of  the  evidence.     State   v.   Coffee,   56   Conn.    415. 

Confessions  extorted  by  mob  violence,  or  by  like  means,  are  invol- 
untary and  inadmissible.  Miller  v.  People,  39  111.  457 ;  Young  v. 
State,  68  Ala.  569;  Williams  v.  State,  72  Miss.  117;  State  v.  Resells, 
34  La.  Ann.  381,  44  Am.  Rep.  436. 

Religious  exhortation. —  Com.  v.  Tuckerman,  10  Gray  (Mass.), 
173;  Com.  v.  Drake,  15  Mass.  161. 

Mere  advice. —  Mere  advice  of  a  public  official  that  it  is  better  to 
confess,  coupled  with  a  statement  that  no  promise  is  made,  do  not 
render  the  confession  inadmissible.     Com.  v.  Nott,  135  Mass.  269. 

The  character  of  the  person  holding  out  the  inducement. —  Com. 
v.  Howe,  2  Allen  (Mass.),  153. 

The  master  is  a  person  in  authority  if  he  is  the  prosecutor.  Com. 
v.  Sego,  125  Mass.  210. 

A  confession  to  a  public  official,  if  voluntary,  is  admissible.  Com. 
v.  Sheehan,  163  Mass.  170;  Com.  v.  Holt,  121  Mass.  61;  Com.  v. 
Crocker,  108  Mass.  464. 

Person  not  in  authority. —  Com.  v.  Tuckerman,  10  Gray  (Mass.), 
173,  190. 

A  confession  to  fellow-members  of  the  church  is  voluntary.  Com. 
v.  Drake,  15  Mass.  161. 

Question  for  the  judge. —  The  admissibility  of  a  confession  pre- 
sents a  question  for  the  judge.  Com.  v.  Culver,  126  Mass.  464; 
Palmer  v.  State,  136  Ind.  393;  State  v.  Kinder,  96  Mo.  548;  State  v. 
Holden,  42  Minn.  350;  Biscoe  v.  State,  67  Md.  6;  Lefevre  v.  State, 
50  O.  St.  584. 

The  inquiry  as  to  admissibility  is  addressed  to  the  discretion  of 
the  court,  and  is  whether,  considering  the  age,  situation,  and  char- 
acter of  the  prisoner,  and  the  circumstances,  it  was  voluntary  or 
not.     State  v.  Potter,  18  Conn.  178. 

The  discretion  of  the  trial  judge  in  receiving  a  confession  in- 
volves tv.  question  of  duty,  and  is,  therefore,  reviewable;  and  a  clear 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  147 

case  of  abuse  may  furnish  ground  for  a  new  trial,  State  v.  Willis, 
71  Conn.  294. 

Collateral  inducement. —  State  v.  Wenttoorth,  37  X.  H.  218:  Stone 
v.  State,  105  Ala.  60,  69;  State  v.  Hopkirk,  84  Mo.  278. 

After  removal  of  impression. —  State  v.  Carr,  37  Vt.  191;  State  v. 
Potter,  18  Conn.  166.  Supporting  the  text.  Com.  v.  Howe,  132  Mass. 
250;  Com.  v.  CwZten,  111  Mass.  435;  State  v.  Brown,  73  Mo.  631; 
Rizzolo  v.  Com.,  126  Pa.  St.  54;  U.  S.  v.  /Twte,  4  Cranch  C.  C.  100. 

The  circumstances  under  which  statements  are  made  are  a  matter 
for  the  judge.  The  fact  that  prior  to  the  confession  to  a  sheriff, 
promises  and  inducements  had  been  held  out  by  another  officer. 
does  not,  as  matter  of  lrw,  render  the  confession  inadmissible.  It 
may  appear  that  the  confession  was  uninfluenced,  and  voluntarily 
made.     State  v.  Willis,  71  Conn.  294. 

Facts  discovered  through  confession. —  Com.  v.  Knapp,  9  Pick. 
(Mass.)  497,  20  Am.  Dec.  491;  People  v.  Hoy  Yen,  34  Cal.  176; 
Pressley  v.  State,  111  Ala.  34;  State  v.  Winston,  116  N.  C.  990: 
State  v.  Mortimer,  20  Kan.  93;  II.  S.  v.  Hunter,  1  Cranch  C.  C.  317  ; 
Gates  v.  People,  14  111.  433;  Laros  v.  Com.,  84  Pa.  St.  200;  State  v. 
Garvey,  28  La.  Ann.  925. 

A  statement  by  one  accused  of  murder,  as  to  what  disposition  he 
had  made  of  the  watch  of  the  decedent,  in  connection  with  evidence 
identifying  the  watch,  and  that  it  was  found  at  the  place  indicated, 
is  admissible,  no  matter  what  promises  had  been  previously  made. 
State  v.  Willis,  71  Conn.  294. 

In  custody. —  A  confession  is  not  to  be  rejected  simply  on  the 
ground  that  it  was  made  while  in  custody.  People  v.  Went?.  37  X. 
Y.  303;  Murphy  v.  People.  63  N.  Y.  590;  Cox  v.  People,  80  X.  Y. 
500;  People  v.  McCallam,  103  X.  Y.  587;  People  v.  Chapleau.  121 
N.  Y.  266;  People  v.  Cassidy,  133  X.  Y.  612;  People  v.  Druse.  103 
N.  Y.  655 ;  People  v.  Rogers,  18  X.  Y.  9,  72  Am.  Dec.  484 ;  People  v. 
Thaus,  3  Park.  Cr.  256;  Hartung  v.  People,  4  Park.  Cr.  319;  People 
v.  Montgomery,  13  Abb.  Pr.  (X.  S.)  207;  Ward  v.  People,  3  Hill, 
395. 

Even  though  the  custody  is  illegal.  Balbo  v.  People,  80  X.  Y.  499, 
affirming  19  Hun,  424. 

Inducement  withdrawn. —  A  confession  made  after  the  promise 
which  would  make  it  incompetent  has  been  withdrawn  is  admis- 
sible.   Ward  v.  People,  3  Hill,  395,  6  Hill,  144. 


148  A  DIGEST  OF  [Part  I. 

Confession  through  hope. —  Under  section  395  of  the  Code  of  Crim- 
inal Procedure,  a  confession  is  not  inadmissible  simply  because  it 
was  induced  by  hope.  People  v.  Mondan,  103  N.  Y.  219,  57  Am.  Rep. 
709. 

After  removal  of  impression. —  People  v.  MacEinder,  80  Hun,  40, 
29  N.  Y.  Supp.  842. 

Credit  for  jury. —  The  credit  to  be  given  to  a  confession  is  for  the 
jury.  Barnes  v.  Allen,  30  Barb.  663;  Murphy  v.  People,  63  N.  Y. 
590. 

They  may  give  different  weight  to  different  parts  of  it.  People  v. 
Ruloff,  3  Park.  Cr.  401. 

New  Jersey. 

What  is  a  voluntary  confession. —  Roesel  v.  State,  62  N.  J.  L.  216; 
State  v.  Young,  67  N.  J.  L.  223. 

Confession  must  be  voluntary.—  Before  admitting  a  confession,  the 
court  should  require  the  fullest  explanation  of  the  circumstances 
under  which  it  was  made,  and  the  defendant  has  the  right  to  intro- 
duce testimony  on  the  point  prior  to  its  admission.  State  v.  Hill, 
65  N.  J.  L.  627. 

A  confession  improperly  induced  not  admissible,  nor  is  an  exami- 
nation of  the  accused  made  a  few  hours  after  the  confession.  State 
v.  Guild,  5  Hal.  163. 

A  confession  admissible  only  when  voluntary;  the  question  being 
as  to  the  state  of  mind  of  the  prisoner  at  the  time  he  confessed. 
This  question  is  for  the  trial  court.  Bullock  v.  State,  65  N.  J.  L. 
557;  State  v.  Roesel,  62  N.  J.  L.  216;  State  v.  Abbalto,  64  N.  J.  L. 
658. 

Confession  of  an  infant. —  Confession  of  an  infant  under  twelve  to 
be  excluded  —  circumstances  of  inducement  of  hope  or  fear.  State 
v.  Aaron,  1  South.  231,  240. 

Burden  of  proof. —  The  burden  of  proving  that  a  confession  is 
voluntary  is  on  the  State.  State  v.  Young,  67  N.  J.  L.  223;  Roesel 
v.  State,  62  N.  J.  L.  216. 

After  removal  of  influence. —  A  confession  is  admissible  though 
improper  inducements  have  been  previously  used  if  it  can  be  shown 
that  they  had  no  influence  on  this  confession.  State  v.  Guild,  5 
Hal.  163. 

Question  for  the  judge. —  Whether  a  confession  was  or  was  not 
voluntary  is  a  question  of  mixed  law  and  fact  for  the  trial  judge. 
Sinic  v.  Young,  67  N.  J.  L.  223. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  149 

Maryland. 

Authorities. — -Rogers  v.  State,  S9  Md.  424;  State  v.  Freeman,  12 
Md.  100;  Green  v.  tftefe,  96  Md.  384;  Biscoe  v.  State,  67  Md.  (J; 
L'oss  v.  State,  67  Md.  286. 

Burden  of  proof. —  Burden  of  proving  a  confession  to  be  voluntary 
is  on  the  prosecutor.     Nicholson  v.  State,  38  Md.  140. 

Before  admitting  a  confession,  the  court  should  ascertain  whether 
any  improper  inducements  were  used  and  whether  they  did  induce 
the  confession.  Biscoe  v.  State,  67  Md.  6;  Nicholson  v.  State,  38 
Md.  140. 

Confessions  to  officers. —  A  confession  is  not  involuntary  merely 
because  made  to  a  peace  officer  having  custody  of  the  one  confessing. 
Young  v.  State,  90  Md.   579. 

A  confession  made  to  a  marshal  of  police  may  be  admissible. 
Ross  v.  Stale,  07  Md.  286. 

Question  for  the  judge. —  The  admissibility  of  a  confession  pre- 
sents a  question  for  the  judge.     Biscoe  v.  State,  67  Md.  6. 

Pennsylvania. 

Voluntary  confessions. —  Com.  v.  Harman,  4  Pa.  269;  Fife  v. 
Com.,  29  Pa.  429. 

The  inducement. —  Confession  induced  by  threats  is  not  admissible. 
Com.  v.  H anion,  8  Phila.  423. 

A  confession  held  admissible  obtained  after  an  officer  said  the 
following:  "  If  you  have  anything  to  tell  me,  tell  the  truth;  if  not, 
tell  me  nothing.  You  have  a  right  to  keep  your  mouth  shut,  but 
I  tell  you  now,  anything  you  say  to  me  I  shall  use  against  you." 
Rizzolo   v.   Com.,   126   Pa.   54. 

The  accused  may  show  as  a  part  of  his  defense  that  a  confession, 
made  prior  to  one  introduced  by  the  State,  was  procured  by  improper 
means.      Com.  v.   Van  Horn,   188  Pa.    143. 

Confessions  to  officers. —  A  confession  is  not  inadmissible  merely 
because  it  was  made  to  the  officer  in  charge  of  the  prisoner.  Com. 
v.  Moslcr,  4  Pa.  264;  Com.  v.  McGowan,  2  Pars.  341. 

A  confession  is  not  inadmissible  merely  because  it  was  made  after 
arrest.     Com.  v.  Moslcr,  4  Pa.  264;  Com.  v.  Hanlon,  8  Phila.  423. 

After  removal  of  impression. —  Supporting  the  text.  Riz~olo  v. 
Com.,  126  Pa.  54. 

A  confession  is  admissible  though  obtained  by  means  of  improper 
inducements,  if  adhered  to  after  the  influence  of  such  inducements 
is  gone.     Com.  v.  Dillon,  4  Dfell.  116;  Fife  v.  Com.,  29  Pa.  437. 


150  A  DIGEST  OF  [Part  I. 

Facts  discovered  through  confession. —  Laros  v.  Com.,  84  Pa.  200. 

Province  of  the  court  and  of  the  jury. —  Whether  a  confession  was 
voluntary  is  at  first  a  question  for  the  court.  The  witness  who  is 
offered  to  prove  the  confession  may  first  be  cross-examined  as  to 
the  circumstances  under  which  it  was  given.  Later  the  accused  may 
give  testimony  to  show  that  the  confession  was  involuntary,  and  it 
then  becomes  a  question  for  the  jury.  Com.  v.  Epps,  193  Pa.  512; 
Rizzolo  v.  Com.,  126  Pa.  54;  Com.  v.  Tan  Horn,  188  Pa.  143;  Com. 
v.  Shew,   190  Pa.  23. 

The  court  is  the  judge  of  whether  such  inducement  was  held  out 
as  to  make  a  confession  inadmissible.     Fife  v.  Com.,  29  Pa.  429. 

Article  23.* 

confessions  made  upon  oath,  etc. 

Evidence  amounting  to  a  confession  may  be  used  as  such 
against  the  person  who  gives  it,  although  it  was  given  upon 
oath,  and  although  the  proceeding  in  which  it  was  given 
had  reference  to  the  same  subject-matter  as  the  proceeding 
in  which  it  is  to  be  proved,  and  although  the  witness  might 
have  refused  to  answer  the  questions  put  to  him;  but  if, 
after  refusing  to  answer  any  such  question,  the  witness  is 
improperly  compelled  to  answer  it,  his  answer  is  not  a  vol- 
untary confession.34 

Illustrations. 

(a)  The  answers  given  by  a  bankrupt  in  his  examination  may  be 
used  against  him  in  a  prosecution  for  offences  against  the  law  of  bank- 
ruptcy.-'^ 

*  See  Note  XVI. 

34  R.  v.  Oarbett,  1847.  1  Den.  236.  See  also  R.  v.  Given,  1888,  20 
Q.  B.  D.  829.  as  explained  in  A',  v.  Paul,  1890,  25  Q.  B.  D.  202. 

•"•r>  B.  v.  Seott,  1856,  1  D.  &  B.  47 ;  25  L.  J.  M.  C.  128 ;  R.  v.  Robinson, 
1867,  1  C.  C.  R.  80;  R.  v.  Widdop,  1872,  L.  R.  2  C.  C.  5;  R.  v.  Erdheim, 
[1896],  2  Q.  B.  260. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  151 

( b )   A  is  charged  with  maliciously  wounding  B. 

Before  the  magistrates  A  appeared  as  a  witness  for  C,  who  was 
charged  with  the  same  offence.  A's  deposition  may  be  used  against 
him  on  his  own  trial.36 

AMERICAN  NOTE. 
General. 

Authorities. —  6  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.), 
p.  562;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  224-227;  State 
v.  Witham,  72  Me.  531;  State  v.  Oilman,  51  Me.  209;  State  v.  Coffee, 
56  Conn.  399;  Com.  v.  King,  8  Gray  (Mass.),  501;  Com.  v.  Brad- 
ford, 126  Mass.  42;  Com.  v.  Wesley,  166  Mass.  248,  44  N.  E.  228; 
Com.  v.  Myers,  160  Mass.  530;  Com.  v.  Brown,  103  Mass.  422;  Com. 
v.  Dcnehy,  103  Mass.  424,  note;  State  v.  Olahn,  97  Mo.  679;  Peo- 
ple v.  Mitchell,  94  Cal.  550;  Dickerson  v.  State,  48  Wis.  288;  Alston 
v.  State,  41  Tex.  39;  Behler  v.  State,  112  Ind.  140;  Wilson  v.  State, 
110  Ala.  1;  Newton  v.  State,  21  Fla.  53.  Compare  State  v.  Young, 
119  Mo.  495;  Wood  v.  State,  22  Tex.  431;  Williams  v.  Cow.,  29  Pa. 
St.  102;   State  v.  Clifford,  86  la.  553,  41  Am.  St.  Hep.  518. 

Where  a  person  afterwards  indicted  for  murder  was  summoned  as 
a  witness  before  a  coroner  and  there  told  that  he  could  not  be  com- 
pelled to  make  any  statement,  held,  that  his  declarations  then  made 
are  admissible  against  him  on  his  trial  upon  the  indictment.  State 
v.  Coffee,  56  Conn.  413-416. 

Improperly  compelled  to  answer. —  Last  clause  of  the  text. 
Farkes  v.  State,  60  Miss.  S47;  Lyons  v.  People,  137  111.  602;  State 
v.  Clifford,  86  la.  550. 

Testimony  at  inquest. —  Testimony  at  a  coroner's  inquest  may  be 
admitted  as  a  confession.  Hendrickson  v.  People,  10  N.  Y.  13,  61 
Am.  Dee.  721 ;  Teachout  v.  People,  41  N.  Y.  7. 

Last  clause  of  the  text. —  Compulsory  testimony  given  after  the 
accused  has  claimed  his  privilege  cannot  be  used  against  him.  Hen- 
dricksen  v.  People,  10  N.  Y.  13,  61  Am.  Dec.  721 ;  People  v.  McMahon, 
15  N.  Y.  384. 

It  is  otherwise  where  the  testimony  is  voluntarily  given.  People 
v.  Mondan,  103  N.  Y.  211,  57  Am.  Rep.  709. 

R«  Tf.  v.  Chidley  &  Cummins,  1860.  8  Cox,  C.  C.  365. 


152  A  DIGEST  OF  [Part  I. 

Pennsylvania. 

Authorities. —  Williams  v.  Com.,  29  Pa.  102. 

Confession  not  inadmissible  merely  because  made  on  oath.  Com. 
v.  Clark,  130  Pa.  641. 

Testimony  of  the  accused  given  on  oath  at  the  coroner's  inquest 
before  he  himself  was  suspected  is  admissible  against  him.  Williams 
v.  Com.,  29  Pa.  102. 

Where  the  committing  magistrate  obtains  a  confession  on  oath  by 
a  threat  of  commitment,  it  is  not  admissible.  Com.  v.  Harman,  4 
Pa.  269. 

Where  a  statute  provides  that  a  prisoner  shall  not  be  put  on  oath 
at  a  preliminary  hearing,  a  confession  made  under  oath  at  such 
hearing  is  not  admissible.     Com.  v.  Harman,  4  Pa.  269. 

Article    24. 

confession  made  under  a  promise  of  secrecy. 

If  a  confession  is  otherwise  relevant,  it  does  not  become 
irrelevant  merely  because  it  was  made  under  a  promise  of 
secrecy,  or  in  consequence  of  a  deception  practised  on  the 
accused  person  for  the  purpose  of  obtaining  it,  or  when  he 
was  drunk,  or  because  it  was  made  in  answer  to  questions 
which  he  need  not  have  answered,  whatever  may  have  been 
the  form  of  those  questions,  or  because  he  was  not  warned 
that  he  was  not  bound  to  make  such  confession,  and  that 
evidence  of  it  might  be  given  against  him.37 

AMERICAN  NOTE. 

General. 

Authorities. —  6  Am.  &  Eng.  Encyclopedia  of  Law  (2d  ed.),  pp. 
534,  535,  570;  2  Taylor  on  Evidence  (Chamberlayne's  9th  ed.),  p. 
58812. 

Promise  of  secrecy.—  State  v.  Squires,  48  N.  H.  367;  State  v. 
Thomson,  Kirby  (Conn.),  345;  Com.  v.  Knapp,  9  Pick.  (Mass.)  496; 

37  Cases  collected  and  referred  to  in  1  Ph.  Ev.  420,  and  Taylor.  881. 
See,  too,  Joy,  sections  iii.,  iv.,  v. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  153 


State  v.  Darnell,  1   Houst.    (Del.)    321;   State  v.  Mitchell,   1  Phill. 
L.  (is.  C.)  447. 

Confessions  are  not  excluded  because  confidentially  made  to 
private  individuals,  while  endeavoring  to  persuade  them  to  use  their 
influence  to  secure  the  admission  of  the  party  confessing  as  a  wit- 
ness for  the  State.     State  v.  Thompson,  Kirby  (Conn.),  345. 

Obtained  by  deception. —  6  Am.  &  Eng.  Encyclopaedia  of  Law  (2d 
ed.),  p.  535:  Coin.  v.  Dana,  2  Mete.  (Mass.)  329;  State  v.  Graham, 
74  N.  C.  640:  State  v.  Brooks,  02  Mo.  542;  Burton  v.  State,  107  Ala. 
108;  Heldt  v.  State,  20  Neb.  492;  Wigginton  v.  Com.,  92  Ky.  282; 
State  v.  Staley,  14  Minn.  105;  Price  v.  State,  18  O.  St.  418;  Hardy 
v.  U.  S.,  3  App.  D.  C.  35 ;  People  v.  Barker,  60  Mich.  277 ;  Com.  v. 
Hanlon,  3  Brewst.    (Pa.)    461,  498. 

While  drunk. —  A  confession  made  while  under  the  influence  of 
liquor  is  admissible,  but  not  if  so  drunk  as  not  to  understand  the 
nature  of  the  confession.  6  Am.  &  Eng.  Encyclopaedia  of  Law  (2d 
ed.),  p.  570;  Com.  v.  Howe,  9  Gray  (Mass.),  110;  State  v.  Grear,  28 
Minn.  426;  People  v.  Ramirez,  56  Cal.  533;  State  v.  Feltes,  51  la. 
495;  White  v.  State,  32  Tex.  App.  625;  Eskridge  v.  State,  25  Ala. 
30;  Woolfolk  v.  State,  85  Ga.  69,  101;  People  v.  Robinson,  19  Cal. 
40. 

No  warning. —  People  v.  Cuffee,  108  Mass.  285;  Com.  v.  Robin- 
son, 165  Mass.  429,  43  N.  E.  121;  Wilson  v.  U.  S.,  162  U.  S.  613. 

A  warning  to  the  accused  that  he  need  not  confess  is  not  necessary, 
but  if  given  is  relevant  to  show  that  the  confession  was  voluntary. 
State  v.  Oilman,  51  Me.  206. 

The  warning,  when  given,  tends  to  show  that  the  confession  was 
voluntary.  People  v.  Simpson,  48  Mich.  474.  It  is  sometimes  re- 
quired by  statute.  State  v.  Rogers,  112  N.  C.  874;  Coffee  v.  State, 
25  Fla.  501. 

In  answer  to  improper  question. —  People  v.  Wentz,  37  N.  Y.  303, 
306. 

Pennsylvania. 

Confessions  obtained  by  deception. —  Confession  obtained  by  arti- 
fice is  admissible.  Coin.  v.  Hanlon,  3  Brewst.  461;  Com.  v.  Cres- 
singer,  193  Pa.  326. 

A  confession  procured  by  the  artifice  of  granting  an  interview 
between  a  man  and  a  woman  accused  of  a  crime  and  then  stationing 
eavesdroppers  is  admissible.     Com.  v.  Goodwin,  186  Pa.  218. 


154                                           A  DIGEST  OF  [Part  J. 

A  confession  obtained  by  detectives,  who  represented  themselves 
to  be  a  criminal  gang  and  offered  to  let  the  defendant  join  them  if 

he  could  show  that  his  criminal  record  was  sufficient,  is  admissible, 
but  open  to  suspicion.     Com.  v.  Wilson,  186  Pa.  1. 

A  confession  to  a  fellow  convict  obtained  by  deception  is  admissi- 
ble in  the  absence  of  improper  inducement.  Com.  v.  H anion,  3 
Brewst.  461;  8.  C,  8  Phila.  401,  423. 


Article  25. 

statements  by  deceased  persons  when  deemed  to 
be  relevant. 

Statements  written  or  oral  of  facts  in  issue  or  relevant 
or  deemed  to  be  relevant  to  the  issue  are  deemed  to  be 
relevant,  if  the  person  who  made  the  statement  is  dead,  in 
the  cases,  and  on  the  conditions,  specified  in  Articles  26-31, 
both  inclusive.  In  each  of  those  articles  the  word  "  declara- 
tion "  means  such  a  statement  as  is  herein  mentioned,  and 
the  word  "  declarant  "  means  a  dead  person  by  whom  such 
a  statement  was  made  in  his  lifetime. 

AMERICAN  NOTE. 
General. 

Authorities. —  9  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  6 
et  seq.;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  123;  Putnam  v. 
Fisher,  52  Vt.  191. 

It  is  no  ground  for  admitting  a  declaration  of  a  living  person 
that  he  cannot  be  produced  as  a  witness.  Churchill  v.  Smith,  16 
Vt.   560. 

Insanity. —  Insanity  in  some  States  has  the  same  effect  as  death 
so  far  as  the  question  of  admissibility  of  declarations  is  concerned. 
Union  Bank  v.  Knapp,  3  Pick.  (Mass.)  96,  109,  15  Am.  Dec.  181; 
Holbrooh  v.  Cay,  6  Cush.  (Mass.)  215;  Reynolds  v.  Manning,  15  Md. 
510,  523. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  155 

Absence. —  And  so  in  some  States  has  permanent  absence  from 
the  State.  Alter  v.  Berghaus,  8  Watts  (Pa.),  77;  Elms  v.  Chevis, 
2  McCord  (S.  C),  329;  Reynolds  v.  Manning,  15  Md.  510,  523. 
Contra,  Moore  v.  Andrews  d  Bros.,  5  Porter   (Ala.)    107. 

Maryland. 

Declarations  of  one  now  insane  are  admissible;  also  of  one  per- 
manently absent  from  the  State.  Reynolds  v.  Manning,  15  Md.  510, 
523. 

Pennsylvania. 

Permanent  absence  from  the  State  has  the  same  effect  as  death. 
Alter  v.  Berghaus,  8  Watts,  77. 

Article  26.* 
dying  declaration  as  to  cause  of  death. 

A  declaration  made  by  the  declarant  as  to  the  cause  of 
his  death,  or  as  to  any  of  the  circumstances  of  the  transac- 
tion which  resulted  in  his  death,  is  deemed  to  be  relevant 

only  in  trials  for  the  murder  or  manslaughter  of  the 
declarant ; 

and  only  when  the  declarant  is  shown,  to  the  satisfaction 
of  the  judge,  to  have  been/in  actual  danger  of  death,  and  to 
have  given  up  all  hope  of  recovery  at  the  time  when  his 
declaration  was  made. 

Such  a  declaration  is  not  irrelevant  merely  because  it  was 
intended  to  be  made  as  a  deposition  before  a  magistrate, 

but  is  irregular. 

Illustrations, 
(a)   The  question  is,  whether  A  has  murdered  B. 
B  makes  a  statement  to  the  effect  that  A  murdered  him. 
B  at  the  time  of  making  the  statement  has  no  hope  of  recovery, 


*  See  Note  XVII. 


156  A  DIGEST  OF  [Part  I. 

though  his  doctor  had  such  hopes,  and  B  lives  ten  days  after  making 
the  statement.     The  statement  is  deemed  to  be  relevant.38 

B,  at  the  time  of  making  the  statement  (which  is  written  down), 
says  something,  which  is  taken  down  thus :  "  I  make  the  above  state- 
ment with  the  fear  of  death  before  me,  and  with  no  hope  of  recovery."' 
B,  on  the  statement  beiag  read  over,  corrects  this  to  "  with  no  hope 
at  present  of  my  recovery."  B  dies  thirteen  hours  afterwards.  The 
statement  is  deemed  to  be  irrelevant.39 

( b)  The  question  is,  whether  A  administered  drugs  to  a  woman  with 
intent  to  procure  abortion.  The  woman  makes  a  statement  which 
would  have  been  admissible  had  A  been  on  his  trial  for  murder.  The 
statement  is  deemed  to  be  irrelevant.40 

(c)  The  question  is,  whether  A  murdered  B.  A  dying  declaration 
by  C  that  he  (C)  murdered  B  is  deemed  to  be  irrelevant.41 

(d)  The  question  is,  whether  A  murdered  B. 

B  makes  a  statement  before  a  magistrate  on  oath,  and  makes  her 
mark  to  it,  and  the  magistrate  signs  it,  but  not  in  the  presence  of  A, 
so  that  her  statement  was  not  a  deposition  within  the  statute  then  in 
force.  B,  at  the  time  when  the  statement  was  made,  was  in  a  dying 
state,  and  had  no  hope  of  recovery.  The  statement  is  deemed  to  be 
relevant.42 

AMERICAN  NOTE. 

General. 

Authorities. —  10  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p. 
360  et  seq.;  Underhill  on  Evidence,  sec.  100  et  seq.;  State  v.  Wag- 
ner, 61  Me.  178,  195;  Com.  v.  Casey,  11  Cush.  (Mass.)  417,  421,  59 
Am.  Dec.  150;  Com.  v.  Richards.  18  Pick.  (Mass.)  437;  Maxwell 
v.  Hardy,  8  Pick.  (Mass.)  561;  Com.  v.  Cooper,  5  Allen  (Mass.), 
495 ;  Hamlin  v.  State,  48  Conn.  96. 

38  7?.  v.  Mosley,  1S25,  1  Moo.  97. 

39  7?.  v.  Jenkins,  1869,  1  C.  C.  R.  187. 

•»o  7?.  v.  Hind,  1860,  Bell,  253,  following  7?.  v.  Hutchinson,  1824,  2 
B.  &  C.  608  n.,  quoted  in  a  note  to  7?.  v.  Mead. 

«  Qray's  Case,  1841.  Ir.  Cir.  Rep.  76. 

42  7?.  v.  Woodcock.  1789,  1  East,  P.  C.  356.  In  this  case,  Eyre.  C.  B., 
is  said  to  have  left  to  the  jury  the  question,  whether  the  deceased  was 
not  in  fact  under  the  apprehension  of  death?  1  Leach,  504.  It  is 
now  settled  that  the  question  is  for  the  judge. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  157 

Even  though  written  memoranda  of  the  contents  of  the  declara- 
tion were  made,  if  they  are  lost,  parol  evidence  may  be  admitted. 
State  v.  Patterson,  45  Vt.  308. 

Dying  declarations  are  admissible  in  a  trial  for  murder  resulting 
from  an  attempt  to  commit  an  abortion.  State  v.  Dickinson,  41  Wis. 
299 ;  State  v.  Leeper,  70  la.  748. 

Scope  of  proof. —  Declarations  as  to  facts  attending  a  murder, 
made  by  the  victim  in  expectation  of  death,  are  admissible  upon  the 
trial  for  the  murder.  State  v.  Smith,  49  Conn.  379 ;  State  v.  Mc- 
Gotcan,  65  Conn.  381. 

It  is  not  essential  to  their  admissibility  that  they  should  directly 
accuse  the  prisoner  of  being  the  assailant.  State  v.  Cronin,  64  Conn. 
304-306. 

Antecedent  threats  cannot  be  proven  by  such  declarations.  State 
v.  Wood,  53  Vt.  560;  Jones  v.  State,  71  Ind.  66;  People  v.  Ah  Fong 
Sing,  64  Cal.  253. 

How  made. — ■  Declarations  of  this  nature  are  admissible  if  made 
in  response  to  questions.     Com.  v.  Casey,  11  Cush.   (Mass.)   417. 

Such  a  declaration  may  be  made  by  signs.  Com.  v.  Casey,  11 
Cush.  (Mass.)  417:  State  v.  Foot  You,  24  Ore.  61:  Jones  v.  State, 
71  Ind.  66. 

A  dying  declaration  may  be  admitted,  even  though  written  and 
sworn  to.     Com.  v.  Eaney,  127  Mass.  455. 

An  intended  deposition  may  be  used  as  a  memorandum  to  refresh 
the  recollection  of  the  witness.     Com.  v.  Haney,  127  Mass.  455. 

In  contemplation  of  death. —  The  declaration  must  be  made  in 
contemplation  of  death.  Com.  v.  Dcnsmore,  12  Allen  (Mass.),  535; 
State  v.  Baldwin,  79  la.  714:  Westbrook  v.  People,  126  111.  81;  State 
v.  Nelson,  101  Mo.  464;  Kehoe  v.  Com..  85  Pa.  St.  127:  People  v. 
Simpson,  48  Mich.  474;  Carver  v.  U.  S.,  164  U.  S.  694.  (Receipt  of 
extreme  unction  admissible  evidence.)  See  also  as  similar  to  the  last 
preceding  case.  State  v.  Swift,  57  Conn.  505.  506. 

All  hope  of  recovery  must  have  been  abandoned.  Com.  v.  Roberts, 
108  Mass.  296:  Com.  v.  Brewer,  164  Mass.  577:  Allison  v.  Com.,  99 
Pa.  17;  State  v.  Johnson,  118  Mo.  491 ;  Simons  v.  People,  150  111.  66; 
Hake  v.  Com.,  89  Va.  171 :  People  v.  Gray,  61  Cal.  164. 

All  the  attendant  circumstances  are  admissible  to  show  the 
actual  danger  of  death  and  that  hope  has  been  abandoned.  State 
v.  Swift,  57  Conn.  496. 

Such  declarations  may  tend  to  show  that  the  deceased  was  in 
actual  (lancer  of  death,  and  had  given  up  all  hope;   and  if  so,  are 


158  A  DIGEST  OF  [Part  I. 

admissible  to  lay  a  foundation  for  the  admission  of  other  declarations 
which  do  identify  the  prisoner  as  the  assailant.  State  v.  Cronin, 
64  Conn.   304. 

In  criminal  prosecutions  only. —  Dying  declarations  are  not  ad- 
missible in  civil  suits.  Thayer  v.  Lombard,  165  Mass.  174,  42  N.  E. 
563;  Daily  v.  N.  Y.,  etc.,  R.  R.  Co.,  32  Conn.  356,  87  Am.  Dec.  176; 
Hood  v.  Pioneer  Co.,  95  Ala.  461 ;  Marshall  v.  Chicago,  etc.,  R.  Co., 
48  111.  475. 

Nearness  of  death. —  It  is  not  necessary  that  the  declarant  die  at 
once.  They  were  admitted,  although  he  lived  seventeen  days  after 
making  them.  Co?n.  v.  Cooper,  5  Allen  (Mass.),  495;  Jones  v.  State, 
71  Ind.  66  (14  days);  Loiory  v.  State,  12  Lea  (Tenn.),  142  (17 
days)  :  State  v.  Craine,  120  N.  C.  601    (4  months). 

Constitutionality  of  rule. —  The  constitutional  provision  that  one 
accused  has  a  right  to  be  confronted  with  his  witnesses  does  not  ex- 
clude evidence  of  this  nature.  Com.  v.  Casey,  12  Cush.  (Mass.)  246: 
People  v.  Glen.  10  Cal.  32;  Brown  v.  Com.,  73  Pa.  St.  321;  State  v. 
Nash,  7  la.  347:  Walston  v.  Com.,  16  B.  Mon.  (Ky.)  15:  Burrill  v. 
State,  18  Tex.  713:  State  v.  Dickinson,  41  Wis.  299;  Rollins  v. 
State,  8  0.  St.  131. 

Only  in  homicide  cases. —  They  are  not  admissible  in  prosecutions 
for  abortion  where  death  is  not  a  necessary  element  of  the  crime. 
People  v.  Davis,  56  N.  Y.  95: 

They  are  confined  to  cases  involving  the  death  of  the  declarant. 
People  v.  Davis.  56  N.  Y.  103;  Hackett  V.  People,  54  Barb.  372: 
People  v.  Wood,  2  Edm.  Sel.  Cas.  74. 

Husband  and  wife. —  The  declaration  of  husband  or  wife  is  ad- 
missible on  the  trial  of  the  other.     People  v.  Green,  1  Den.  614. 

Sense  of  impending  death,  how  shown. — Doles  v.  State,  97  Ind.  555. 

The  proof  that  a  statement  was  in  expectation  of  death  may  be 
circumstantial.     Green  v.  State,  154  Ind.  655. 

In  order  to  render  dying  declarations  admissible  the  declarant 
must  be  at  the  point  of  death,  and  conscious  that  he  is  at  the  point 
of  death.  Jones  v.  State,  71  Ind.  66;  Morgan  v.  State,  31  Ind.  193; 
Archibald  v.  State,  122  Ind.  122;   Watson  v.  State,  63  Ind.  548. 

Oral  evidence. —  Unless  it  appears  that  a  dying  declaration  has 
been  reduced  to  writing,  oral  evidence  is  admissible.  Shenkenlerger 
v.  State,  154  Ind.  630;  Lane  v.  State,  151  Ind.  511. 

The  best  evidence  of  a  written  and  signed  dying  declaration  is  the 
declaration  itself.     Binns  v.  State,  46  Ind.  311. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  159 

New  Jersey. 

General  rule. —  A  patient  was  told  she  had  one  chance  for  life  and 
stated  she  did  not  expect  to  recover  but  would  like,  to.  Her  declara- 
tions held  not  admissible.     Peak  v.  State,  50  N.  J.  L.  179. 

Whether  a  dying  declaration  is  admissible  or  not  is  for  the  court ; 
its  credibility  is  for  the  jury.  Donnelly  v.  State,  26  N.  J.  L.  403, 
601. 

Declarant  must  have  had  a  sense  of  impending  death  and  no  hope 
of  recovery.     State  v.  Peake,  10  N.  J.  L.  J.  177. 

The  conduct  of  the  declarant  while  making  a  dying  declaration 
is  admissible.  His  expectation  of  approaching  death  may  be  shown 
by  his  statements,  by  the  fact  that  he  made  his  will,  and  by  other 
attendant  circumstances.     Donnelly  v.  State,  26  N.  J.  L.  463,  601. 

Only  to  prove  homicide.—  Dying  declarations  inadmissible  for 
other  purposes  (Mackay  v.  Mackay,  Pen.  419e)  as  to  show  that 
the  accused  was  insane   (State  v.  Spencer,  1   Zab.   196). 

Illustration  (b).—  In  prosecution  for  causing  an  abortion,  where 
the  death  of  the  woman  is  an  element  of  the  crime,  her  dying  decla- 
rations are  admissible.  State  v.  Meyer,  65  N.  J.  L.  237,  reversing 
64  N.  J.  L.  382. 

In  civil  cases. —  Dying  declarations  not  admissible  as  such  in  civil 
actions.     Jenks  v.  Breen   (Ch.),  5  Atl.  647. 

Atheists. —  Dying  declaration  by  one  not  believing  in  God  or  in 
future  reward  and  punishment  is  not  admissible.  Donnelly  v.  State, 
26  N.  J.  L.  465,  602. 

Maryland. 

A  declaration  of  one  who  believed  she  was  about  to  die  is  admis- 
sible even  though  her  physician  held  out  hopes  of  her  recovery. 
Worthington  v.  State,  92  Md.  222. 

Pennsylvania. 

General  authorities. —  Pennsylvania  v.  Stoops,  Add.  381 ;  Com.  v. 
Williams,  2  Ash.  69;  Kilpatrick  v.  Com.,  31  Pa.  198;  Com.  v.  Reed, 
2  Pitts.  470,  5  Phila.  528;  Com.  v.  Mika,  171  Pa.  273;  Com.  v.  Sil- 
cox,  161  Pa.  484. 

Declaration  admissible  though  made  seven  days  before  death. 
Com.  v.  Brit  ton,  2  Leg.  Gaz.  26. 

Persons  accused  of  the  crime  may  be  presented  before  the  dying 
man,  masked  as  were  the  parties  when  the  deed  was  done,  and  his 


1G0  A.  DIGEST  OF  [Part  I. 

identification  becomes  a  part  of  his  dying  declaration.  Com.  v. 
Roddy,  184  Pa.  274. 

A  dying-  declaration  as  to  the  nature  of  an  injury  and  the  person 
causing  it  is  admissible,  no  matter  how  much  or  how  convincing  the 
other  evidence  on  the  subject  may  be.     Com.  v.  Roddy,  184  Pa.  274. 

Oral  and  written  dying  declarations  received.  Com.  v.  Birriolo, 
197  Pa.  371. 

Parol  evidence  of  a  dying  declaration  is  admissible,  even  though 
it  was  reduced  to  writing  but  not  read  over  or  signed  by  the  declar- 
ant.   Alison  v.  Com.,  99  Pa.  17. 

Preliminary  proof. —  The  preliminary  evidence  showing  that  a  dec- 
laration was  made  under  a  sense  that  death  was  impending  may  be 
given  in  the  presence  of  the  jury.     Sullivan  v.  Com.,  93  Pa.  284. 

Only  in  trials  for  homicide  of  declarant. —  Admissible  only  in  trials 
for  the  homicide  of  the  declarant.  Brown  v.  Com.,  73  Pa.  321  (mur- 
der of  declarant's  husband)  ;  Com.  v.  Reed,  5  Phila.  52S  (bastardy)  ; 
Kilpatriek  v.  Com.,  31  Pa.  198. 

Declaration  of  the  woman  was  admitted  on  trial  of  an  indictment 
for  producing  a  miscarriage  causing  death.  Com.  v.  Bruce,  16  Phila. 
510. 

Dying  declaration  not  admissible  in  a  civil  suit.  Friedman  v. 
Railroad  Co.,  7  Phila.  203. 

Dying  declarations  of  a  codefendant  not  admissible.  Respublica 
v.  Langcake,  1  Yeates,  415. 

Declaration  of  the  wife  not  admissible  in  trial  for  murder  of  the 
husband,  though  she  was  murdered  at  the  same  time  by  the  de- 
fendant.    Brown  v.  Com.,  73  Pa.  321. 

Consciousness  of  impending  death. —  Small  v.  Com.,  91  Pa.  304; 
Kilpatriek  v.  Com.,  31  Pa.  198. 

The  consciousness  of  impending  death  may  be  inferred  from  the 
circumstances.  Com.  v.  Murray,  2  Ashm.  41 ;  Sullivan  v.  Com.,  93 
Pa.  284. 

Or  it  may  be  shown  by  the  words  of  the  deceased.  Kehoe  v.  Com., 
85  I'm.  127;  Com.  v.  Mika,  171  Pa.  273. 

All  hope  of  recovery  must  have  been  given  up  by  the  declarant  at 
the  time  the  declaration  is  made.  Alison  v.  Com.,  99  Pa.  17;  Small 
v.  Com.,  91  Pa.  304. 

Death  must  have  been  impending  and  must  have  actually  ensued. 
Kilpatriek  v.  Com.,  31  Pa.  198. 

Court  and  jury. —  Admissibility  of  a  dying  declaration  is  for  the 
court  :  credibility  is  for  the  jury.  Kehoe  v.  Com.,  85  Pa.  127;  Com. 
v.  Sullivan,  93  Pa.  284. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  161 

Constitutionality  of  rule. —  The  constitutional  provision  that  one 
accused  has  a  right  to  be  confronted  with  his  witnesses  does  not  ex- 
clude evidence  of  this  nature.     Brown  v.  Com.,  73  Pa.  321. 

Article  27.* 

declarations  made  in  the  course  of  business  or 
professional  duty. 

A  declaration  is  deemed  to  be  relevant  when  it  was  made 
by  the  declarant  in  the  ordinary  course  of  business,  and  in 
the  discharge  of  professional  duty,  at  or  near  the  time  when 
the  matter  stated  occurred,43  and  of  his  own  knowledge. 

Such  declarations  are  deemed  to  be  irrelevant  except  so 

far  as  they  relate  to  the  matter  which  the  declarant  stated 

in  the  ordinary  course  of  his  business  or  duty,  or  if  they  do 

not  appear  to  be  made  by  a  person  duly  authorised  to  make 

them. 

Illustrations. 

(a)  The  question  is,  whether  A  delivered  certain  beer  to  B. 

The  fact  that  a  deceased  drayman  of  A's  on  the  evening  of  the  de- 
livery, made  an  entry  to  that  effect  in  a  book  kept  for  the  purpose,  in 
the  ordinary  course  of  business,  is  deemed  to  be  relevant.44 

( b )  The  question  is,  what  were  the  contents  of  a  letter  not  produced 
after  notice. 

A  copy  entered  immediately  after  the  letter  was  written,  in  a  book 
kept  for  that  purpose,  by  a  deceased  clerk,  is  deemed  to  be  relevant.45 

(c)  The  question  is,  whether  A  was  arrested  at  Paddington,  or  in 
South  Molton  Street. 

A  certificate  annexed  to  the  writ  by  a  deceased  sheriff's  officer,  and 
returned  by  him  to  the  sheriff,  is  deemed  to  be  relevant  so  far  as  it 

*  See  Note  XVIII. 

43  Doe  v.  Turford,  1832,  3  B.  &  Ad.  890. 

44  Price  v.  Torrington,  1703,  2  Smith's  L.  C.  311. 

45  Pritt  v.  Fairclough,  1812,  3  Camp.  305. 

11 


162  A  DIGEST  OF  [Part  L 

relates  to  the  fact  of  the  arrest;  but  irrelevant  so  far  as  it  relates  to 
the  place  where  the  arrest  took  place.46 

(d)  The  course  of  business  was  for  A,  a  workman  in  a  coal-pit,  to 
tell  B,  the  foreman,  what  coals  were  sold,  and  for  B  (who  could  not 
write)  to  get  C  to  make  entries  in  a  book  accordingly. 

The  entries  (A  and  B  being  dead)  are  deemed  to  be  irrelevant,  be- 
cause B,  for  whom  they  were  made,  did  not  know  them  to  be  true.4? 

(e)  The  question  is,  what  is  A's  age.  A  statement  by  the  incum- 
bent in  a  register  of  baptisms  that  he  was  baptised  on  a  given  day  is 
deemed  to  be  relevant.  A  statement  in  the  same  register  that  he  was 
born  on  a  given  day  is  deemed  to  be  irrelevant,  because  it  was  not  the 
incumbent's  duty  to  make  it.48 

(f)  The  question  is,  whether  A  was  married.  Proceedings  in  a 
college  book,  which  ought  to  have  been  but  was  not  signed  by  the  reg- 
istrar of  the  college,  were  held  to  be  irrelevant.49 

AMERICAN   NOTE. 
General. 

Authorities. —  2  Taylor  on  Evidence  ( Chamberlayne's  9th  ed. ) , 
sec.  697  et  seq.;  McKelvey  on  Evidence,  p.  239  et  seq.;  Wheeler  v. 
Walker,  45  N.  H.  355;  Lassone  v.  Boston,  etc.,  R.  R.  Co.,  66  N.  II. 
345 ;  Barber  v.  Bennett,  58  Vt.  476,  56  Am.  Rep.  565 ;  Welsh  v.  Bar- 
rett, 15  Mass.  380,  383;  Riley  v.  Boehm,  167  Mass.  183;  Jones  v.  How- 
ard, 3  Allen   (Mass.),  223. 

When  relevant. — First  paragraph  of  the  text.  Abel  v.  Fitch,  20 
Conn.   96. 

Instances. —  Memoranda  of  a  surveyor  are  admissible  under  this 
article.     Walker  v.  Curtis',  116  Mass.  98. 

And  those  of  a  parish  priest  likewise.  Kennedy  v.  Doyle,  10  Allen 
(Mass.),  161;  Whitcher  v.  McLaughlin,  115  Mass.  167. 

So  those  of  a  hospital  physician.  Townsend  v.  Pepperell,  9!) 
Mass.   40. 

4r>Cha7nbers  v.  BernasconL  1S34.  1  C.  M.  &  R.  347;  see,  too,  Smith 
r.  Blakey,  1867,  L.  R.  2  Q.  B.  326. 
n  Brain  v.  Preece,  1843.  11  M.  &  W.  773. 
48  R.  v.  Clapham,  1829,  4  C.  &  P.  29. 
w  Fox  v.  Bearblock,  1881,  17  Ch.  Div.  429. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  163 

The  register  of  a  notary  is  admissible  to  prove  official  acts  with 
reference  to  dishonored  paper.  Porter  v.  Judson,  1  Gray  (Mass.), 
175;  Nicholls  v.  Webb,  8  Wheat.   (U.  S.)   326. 

Time  when  made. —  Matthews  v.  Westboro,  134  Mass.  562. 

The  fact  that  the  entries  are  made  two  or  three  days  aftsr  the 
occurrences  does  not,  of  itself,  render  them  inadmissible.  Barker  v. 
Haskell,  9  Cusli.    (Mass.)    218. 

Under  certain  circumstances,  entries  made  from  two  to  four  weeks 
after  the  occurrences  are  admissible.  Hall  v.  Glidden,  39  Me.  445; 
Chaffee  v.  U.  S.,  18  Wall.  516;  Reynolds  v.  Sumner,  126  111.  58;  Cul- 
ver v.  Marks,  122  Ind.  554;  Sands  v.  Hammell,  108  Ala.  624;  Laird 
v.  Campbell,   100  Pa.   159. 

Absent  party. —  In  some  States  such  declarations  are  admissible 
when  the  declarant  has  gone  to  parts  unknown.  New  Haven,  etc., 
Co.  v.  Goodwin,  42  Conn.  230.  Or  is  out  of  the  State.  Heiskell  v. 
Rollins,  82  Md.  14;  McDonald  v.  Games,  90  Ala.  147;  Rigby  v. 
Logan,  45  S.  C.  651. 

Insane  party. —  Or  insane.  Bridgewater  v.  Roxbury,  54  Conn. 
213;  Union  Bank  v.  Knapp,  '■'>  Pick.   (Mass.)   96. 

But  not  if  he  is  competent  and  within  the  State.  Bartholomew  v. 
Farwell,  41  Conn.  107;  House  v.  Bleak,  14]   111.  290. 

Books  of  account. —  By  the  early  common  law,  books  of  account,  as 
such,  were  inadmissible.  In  this  country  they  are  admissible,  both 
authenticated.  9  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  D03; 
against  and  in  favor  of  the  person  keeping  them,  when  properly 
2  Taylor  on  Evidence  (American  edition  of  1897),  p.  4631  <t  seq.j 
Augusta  v.  Windsor,  19  Me.  317;  Lassone  v.  B.,  etc.,  R.  R.  Co.,  66 
N.  H.  345;  Bridgewater  v.  Roxbury,  54  Conn.  216;  Terrill  v.  Beecher, 
9  Conn.  344;  House  v.  Bleak,  141  111.  290;  Donovan  v.  B.,  etc.,  R.  R. 
Co.,  158  Mass.  450;  Pratt  v.  White,  132  Mass.  477;  Miller  v.  Shay, 
145  Mass.  162.     But  see  Kaiser  v.  Alexander.  144  Mass.  71. 

A  shop-book,  to  be  admissible,  must  have  been  kept  in  the  regular 
course  of  business,  under  such  circumstances  as  to  import  trust- 
worthiness. Its  character  in  this  regard  is  to  be  passed  upon  by 
the  judge.     Riley  v.  Bochm,  167  Mass.  183. 

A  shop-book,  kept  by  one  who  cannot  write,  consisting  of  mere 
marks,  is  admissible.     Miller  v.  Shay,  145  Mass.  162. 

Entries  duly  authenticated  are  admissible  even  though  they  record 


164  A  DIGEST  OF  [Part  I. 

facts  communicated  by  others.     Smith  v.  Law,  47  Conn.  431;  Har- 
wood  v.  Mulry,  8  Gray   (Mass.),  250. 

When  entries  are  customarily  made  on  information  received  from 
'others,  if  these  are  authenticated  as  correct  by  the  informants,  such 
■entries  are  admissible.  Chisholm  v.  Beaman  Co.,  160  111.  101; 
Chatcaugay  Iron  Co.  v.  Blake,  144  U.  S.  476. 

Time  when  made. —  The  entries  must  have  been  practically  con- 
temporaneous. Davis  v.  Sanford,  9  Allen  (Mass.),  210;  Bentley  v. 
Ward,  116  Mass.  333;  Morris  v.  Briggs,  3  Cush.  (Mass.)  342;  Barker 
v.  Haskell,  9  Cush.  (Mass.)  218;  Chisholm  v.  Beaman  Co.,  160  111. 
.101  :  Hoover  v.  Gehr,  62  Pa.  St.  136. 

Or  must  be  connected  with  contemporaneous  entries  by  the  testi- 
mony of  the  one  who  transferred  them.  Kent  v.  Garvin,  1  Gray 
(Mass.),  148;  Whitney  v.  Sawyer,  11  Gray  (Mass.),  242. 

Books  of  original  entry. —  The  book  of  original  entries  should  be 
produced.  Stetson  v.  Wolcott,  15  Gray  (Mass.),  545;  Woolsey  v. 
Bohn,  41  Minn.  235;  Bonnell  v.  Maicha,  37  N.  J.  L.  198  (day-book 
and  ledger) . 

If  the  ledger  is  the  book  of  original  entry,  it  is  admissible  as  such 
Swain  v.  Cheney,  41  N.  H.  232;  Hoover  v.  Gehr,  62  Pa.  St.  136: 
Foxon  v.  Hollis,  13  Mass.  427 ;  Bonnell  v.  Mawha,  37  N.  J.  L.  198 

Authentication  of  book  entries. —  As  to  the  authentication  of  en 
tries  in  books,  see  Anderson  v.  Edwards,  123  Mass.  273;  Pratt  v. 
White,  132  Mass.  477;  Holbrook  v.  Gay,  6  Cush.  (Mass.)  215; 
Moots  v.  State,  21  O.  St.  653. 

Where  the  person  who  made  entries  which  are  admissible  in  evi- 
dence is  beyond  the  reach  of  process  or  is  incompetent  to  testify,  it 
is  the  same  as  if  he  were  dead,  and  his  handwriting  may  be  proved. 
Bridgeuater  v.  Roxbury,  54  Conn.  216. 

Books  of  account  must  be  proved  by  the  one  making  the  entries,  or 
if  he  is  dead,  by  his  personal  representative.  Pratt  v.  White,  132 
Mass.  477;  Coggsicell  v.  Dollivcr,  2  Mass.  217;  Prince  v.  Smith,  4 
Mass.  455;  Frye  v.  Barker,  2  Pick.  (Mass.)  65;  Mathes  v.  Robinson, 
8  Mete.  (Mass.)  269;  Ball  v.  Gates,  12  Mete.  (Mass.)  491;  Gibson  v. 
Bailey,  13  Mete.  (Mass.)  537;  Arnold  v.  Sabin,  1  Cush.  (Mass.)   531. 

If  the  party  is  insane  his  guardian  may  prove  them.  Holbrook  v. 
Gay,  6  Cush.   (Mass.)    215. 

Illustration  (d). —  Kent  v.  Garvin,  1  Gray  (Mass.),  148;  Har- 
in,nd  v.  Mulry,  8  Gray  (Mass.),  250;  Chaffee  v.  U.  S.,  18  Wall.  516, 
.343:   Thomas  v.  Price,  30  Md.  483. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  165 

Illustration  (e). —  Whitcher  x.  McLaughlin,  115  Mass.  167:  Town- 
send  v.  Pepperell,  99  Mass.  40;  Kennedy  v.  Doyle,  10  Allen  (Mass.), 
161;  Durfee  v.  Abbott,  61  Mich.  471;  Blackburn  v.  Crawford's,  3 
Wall.  175;  Weaver  v.  Leiman,  52  Md.  708;  Lttter  v.  GeTir,  105  Fa.  St. 
577. 

Partnership  books. —  Partnership  books  are  admissible  in  the  same 
way  as  those  of  an  individual.  Adams  v.  Bowerman,  109  N.  Y.  23; 
Buffalo,  etc.,  Bank  x.  Guenther,  1  N.  Y.  Supp.  753. 

They  are  competent  in  a  suit  between  partners.  Fairchild  v.  Fair- 
child,  64  N.  Y.  471,  affirming  5  Hun,  407;  Caldwell  v.  Lciber,  7  Paige, 
483;  Tan  Bokkeleim  v.  Berdell,  3  N.  Y.  Supp.  333;  Cheever  v.  Lamar, 
19  Hun,  130. 

In  such  a  suit  there  is  a  prima  facie  presumption  that  they  are 
correct.  Heart  t  v.  Corning,  3  Pa:ge,  566;  Cheever  v.  Lamar,  19 
Hun,  130. 

Preliminary  proof. —  Books  of  account  are  admissible  in  evidence 
when  proper  foundation  has  been  laid.  Ruggles  v.  Gatten,  50  111. 
412;  Talliaferro  v.  Zt>es,  51  111.  247;  Firs*  Yai.  .BanA;  of  Wood- 
stock v.  Mansfield,  48  111.  494;  Waggeman  v.  Peters,  22  111.  42: 
Adams  v.  Ft*»fc,  53  111.  219;  Kirby  v.  TFaM,  19  111.  393;  Dishon  v. 
Schorr,  19  111.  59;  Humphreys  v.  Spear,  15  111.  275;  Friend  v.  Cote, 
5  Gilm.  339;  Dodson  v.  Sears,  25  111.  513;  #o?/er  v.  Sjteef,  3  Scam. 
120. 

As  to  authenticating  books  of  account.  *ee  Brooks  v.  Funk,  85  111. 
App.  631. 

In  order  that  books  of  account  be  admissible  the  preliminary  proof 
under  the  staute  must  be  made.  Richardson  v.  Allman,  40  111.  App. 
90,  93;  Sexton  v.  Brown,  36  111.  App.  281,  283. 

As  to  preliminary  proof  in  case  of  books  of  account,  see  Rigdoi<  v. 
Conley,  141  111.  565;  House  v.  Beak,  141  111.  290. 

As  to  foundation  for  the  admission  of  books  of  account,  see  F.  H. 
Hill  Co.  v.  Sommer,  55  111.  App.  344. 

It  is  error  to  admit  the  plaintiffs  books  without  laying  sufficient 
ground  for  their  admission.     Baird  v.  Hooker,  8  Brad.  306. 

Account-books  are  not  authenticated  by  the  mere  admission  of  a 
partner  that  they  are  correct.     Gormley  v.  Hartray.  92  111.  App.  115. 

Evidence  that  account-books  are  the  only  ones  kept  authenticates 
them  as  books  of  original  entry.     Patrick  v.  Jack,  82  111.  SI. 

A  witness  must  be  called  to  authenticate  a  party's  books  of  ac- 


1G6  A  DIGEST  OF  [Part  I. 

count,  Stcllaner  v.  White,  98  111.  72;  Redlich  v.  Bauerlee,  98  111. 
134;  Clapp  v.  Emery,  98  111.  523. 

The  one  offering  books  of  account  should  testify  that  they  were 
made  by  himself  and  are  true  and  just.  Pres.  Church  v.  Emerson, 
66  111.  269.     Compare  Walcott  v.  Heath,  78  111.  433. 

When  entries  are  customarily  made  on  information  received  from 
others,  if  these  are  authenticated  as  correct  by  the  informants,  such 
entries  are  admissible.     Chisholm  v.  Beaman  Co.,  160  111.  101. 

Weather  records.—  Hart  v.  Walker,  100  Mich.  406. 

Record  of  receipts. —  People  v.  Flash,  100  Mich.  512. 

Illustration  (e).-Durfee  v.  Abbott,  61  Mich.    471. 

New  Jersey. 

Church  records. —  A  church  record  of  baptisms  is  admissible. 
Supreme  Assembly  v.  McDonald,  59  N.  J.  L.  248. 

Physician's  record. —  Daily  entries  by  a  physician  in  the  ward- 
books  of  an  asylum  are  admissible.  State  v.  Hinkley,  9  N.  J.  L.  J. 
US. 

Books  of  a  corporation. —  The  books  of  a  corporation  are  competent 
evidence  of  the  proceedings  of  the  corporation.  X.  River  Meadow  Co. 
v.  Shrewsbury  Church,  2  Zab.  425;  Van  Hook  v.  Somerville  Co.,  5 
X.  J.  Eq.  137,  633;  Black  v.  Lamb,  12  N.  J.  Eq.  109. 

Books  of  account. —  Books  of  account  are  admissible  to  prove 
amount  of  service  rendered.  Oliver  v.  Phelps,  Spen.  180,  1  Zab. 
597  :   Lyons  v.  Davis,  30  N.  J.  L.  301. 

Books  of  account  not  admissible  to  prove  damages  from  breach 
of  covenant  or  from  wrongful  taking  of  personal  property.  Wait  v. 
Krevcson,  59  N.  J.  L.  71. 

Day-book  admissible.     Oram  v.  Bishop.  7  Hal.  153. 

Books  of  original  entry. —  The  book  of  original  entries  should  be 
produced.     Bonnell  v.  Mawha,  37  X.  J.  L.  198  (day-book  and  ledger). 

Slips  written  by  a  bookkeeper  in  course  cf  business,  but  not  the 
original  memoranda  of  the  transactions  in  question,  are  not  admis- 
sible.    New  Jersei/  Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  X.  J.  L.  189. 

An  account-book  not  a  book  of  original  entry  is  not  admissible. 
Rumscy  v.  Telephone  Co.,  49  N.  J.  L.  322. 

Day-book  and  ledger  should  be  offered  together,  when  it  appears 
affirmatively  that  some  items  have  been  carried  over  into  the  latter. 
Bonnell  v.    Mairha,  37  X.  J.  L.   198. 


€iiap.  IV.]  THE  LAW  OF  EVIDENCE.  167 

Cash  items. —  Plaintiff's  book  is  evidence  of  money  lent.  Craven 
v.  kiUaird,  2  Hal.  345;  Brannin  v.   Voorhees,  2  Green,  590. 

But  not  where  the  book  contains  but  the  single  item  of  cash 
loaned.    Carman  v.  Dunham,  (i  Hal.  189;  'Wilson  V.  Wilson,  1  Hal.  95. 

And  see,  as  holding  that  books  of  account  are  not  admissible  to 
prove  payment  of  money  or  a  loan  of  money,  Inslee  v.  Prall,  3  Zab. 
457;  8.  C,  25  N.  J.  L.  665. 

Books  of  account  not  admissible  in  favor  of  the  merchant  to  prove 
payments  credited  therein.     Oberg  v.  Breen,  50  N.  J.  L.  145. 

Time  entries  must  be  made. —  Entries  may  be  admissible  even 
though  not  made  on  the  same  day  as  the  transaction,  if  they  are 
made  in  the  usual  course  of  business.     Bay  v.  Cook,  2  Zab.  343. 

Entries  made  in  a  day-book  twenty  days  after  the  business  was 
closed,  from  slips  on  which  memoranda  had  been  put  down,  held  ad- 
missible. The  slips  themselves  also  admissible  in  connection  with 
the  day-book.    Dianienl  v.  Colloty,  66  N.  J.  L.  295. 

Miscellaneous. —  Stubs  in  a  check-book  are  not  admissible.  Bunt- 
in;/  ads.  Allen,  3  Harr.  299. 

An  account  rendered  is  admissible,  though  not  kept  by  book. 
Norris  v.  Douglass,  2  South.  817. 

Erasures  in  an  account  affect  only  its  credibility,  not  its  admissi- 
bility.   James  v.  Harvey,  Coxe,  228;  C'oofc  v.  Brister,  4l  Harr.  73. 

Maryland. 

Authority. —  Such  declarations  must  have  been  made  as  a  part  of 
the  ordinary  routine  of  the  particular  transaction.  Railroad  Co.  v. 
Manro,  32  Md.  280. 

Absent  party. —  Such  declarations  are  admissible  when  the  declar- 
ant is  out  of  the  State.     Heiskell  v.  Rollins,  82  Md.  14. 

Books  of  account. —  Original  entries  made  by  a  clerk  in  the  regular 
•course  of  his  duty,  when  he  had  no  interest  to  misstate  the  fact,  are 
admissible  on  proof  of  his  handwriting  if  the  clerk  himself  be  dead, 
insane,  or  beyond  the  jurisdiction.  Reynolds  v.  Manning,  15  Md. 
510. 

Entries  in  the  regular  course  of  business  by  a  clerk  having  no 
interest  to  make  them  incorrectly  are  admissible  on  proof  of  his 
handwriting  if  he  himself  is  beyond  the  jurisdiction.  Heiskell  v. 
Rollins.   82   Md.   14. 

The  entries  need  not  be  in  the  handwriting  of  the  witness  himself, 
if  made  at  his  dictation  and  in  his  presence.  Bullock  v.  Hunter,  44 
5Id.  416. 


1G8  A  DIGEST  OF  [Pabt  1. 

A  pass-book  in  a  bank  is  competent  evidence  to  show  that  a  note 
had  been  discounted.     Black  v.  Bank,  96  Md.  399. 

If  a  party  relies  upon  certain  entries  in  his  favor,  the  other  entries 
in  the  book  become  admissible  also.  Allender  v.  Vestry  of  Trinity, 
3  Gill,  106;  Leo  v.  Tinges,  7  Md.  216. 

Entries  by  interested  party. — ■  The  rule  admitting  books  of  original 
entry  applies  only  when  such  entries  were  made  by  a  disinterested 
party.     Romer  v.  Jaecksch,  39  Md.  585. 

Entries  by  one  partner  now  dead  are  not  admissible  against  a 
firm  debtor.     Romer  v.  Jaecksch,  39  Md.  585. 

Entries  in  a  book  of  original  entry  made  by  the  defendant  in  his 
own  handwriting  ai-e  not  admissible  against  the  plaintiff,  but  may  be 
used  to  refresh  recollection.     Stallings  v.  Gottschalk,  77  Md.  429. 

In  corroboration. —  Where  a  witness  saw  money  paid  by  one  now 
deceased  and  further  saw  the  deceased  make  entries  in  relation 
thereto  in  his  books,  such  entries  are  admissible  in  corroboration  of 
the  witness,  though  they  would  not  be  independently  admissible. 
Gill  v.  Staylor,  93  Md.  453. 

Entries  not  original. —  Entries  made  from  memoranda  kept  by 
another  are  not  admissible.     Thomas  v.  Price,  30  Md.  483. 

A  copy  of  certain  entries  is  not  admissible,  even  though  the  origi- 
nal entries  were  made  by  the  one  copying  them.  Green  v.  Caulk,  16 
Md.  556. 

Illustration   (e). —  Weaver  v.   Lciman,  52   Md.   708. 

Illustration  (d).—  Thomas  v.  Price,  30  Md.  483. 

Proof  of  accounts. —  P.  G.  L.   1888,  art.  35,  sees.  43-46. 

Comptroller's  accounts  made  prima  facie  evidence.  P.  G.  L.  1888, 
art.  19,  sec.  22. 

Pennsylvania. 

Books  of  account. —  Entries  in  account-books  are  admissible  even 
in  favor  of  the  party  making  them  to  prove  work  done  or  goods 
sold  and  delivered.     Corr  v.  Sellers,  100  Pa.  169. 

One  cannot  prove  the  existence  of  a  contract  by  proving  an  entry 
in  his  books  charging  himself  with  receipt  of  the  consideration. 
Building  Society  v.  Holt,  184  Pa.  572. 

Where  there  is  a  written  contract  to  deliver  goods  at  specified 
periods,  their  delivery  cannot  be  proved  by  books  of  original  entry. 
Hall  v.  Woolen  Co.,  187  Pa.  IS. 

Self-serving  entries  not  admissible.     Hottle  v.  Weaver,  206  Pa.  87. 

The  payment  or  loan  of  money  cannot  be  proved  by  entries  in 
books  of  account.     Ducoign  v.  Schreppel,  1  Yeates,  347. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  169 

Entries  containing  "  lumping  charges  "  are  not  admissible.  Corr 
v.  Sellers,  100  Pa.  109. 

As  to  the  effect  of  making  parties  competent  witnesses,  see  Nichols 
v.  Haynes,  78  Pa.  174. 

Entry  in  a  receipt-book  of  a  company  is  admissible  against  it. 
Building  Assn.  v.  Sutton,  35  Pa.  463. 

The  books  of  a  mutual  insurance  company  are  admissible  against 
one  insured  in  the  company.    Diehl  v.  Insurance  Co.,  58  Pa.  443. 

Account-books  are  not  admitted  as  against  the  representative  of 
one  now  deceased.  Appeal  of  McNulty,  135  Pa.  210;  Bishop  v.  Good- 
hart,  135  Pa.  374. 

Books  of  original  entry. —  A  ledger  is  admissible  if  it  is  the  book 
of  original  entry,  and  not  otherwise.  Hoover  v.  Gehr,  62  Pa.  136; 
Huston's  Estate,  167  Pa.  217. 

Transferred  entries  held  not  admissible.  Breinig  v.  Meitzler,  23 
Pa.  156;  Forsythe  v.  Norcross,  5  Watts,  432;  Kessler  v.  McCon- 
achy,  1  Kawle,  435. 

A  day-book  into  which  entries  are  copied  from  a  blotter  is  not  a 
book  of  original  entry.     Breinig  v.  Meitzler,  23  Pa.  156. 

But  a  book  into  which  entries  are  made  on  the  same  or  following 
day  from  memoranda  of  servants  is  admissible.  Ingraham  v.  Bock- 
ins,  9  S.  &  R.  285;  Patton  v.  Ryan,  4  Rawle,  408;  Hartley  v.  Brookes, 
6  Whart.  189;  Jones  v.  Long,  3  Watts,  325;  Hoover  v.  Gehr,  62  Pa. 
136. 

Book  of  original  entry  written  in  lead  pencil  is  admissible.  Hill 
v.  Scott,  12  Pa.  168. 

Course  of  business. —  An  entry  not  in  the  usual  course  of  business 
is  not  admissible.     Shoemaker  v.  Kellog,  11  Pa.  310. 

A  book  containing  no  entries  except  those  against  the  defendant 
is  not  admissible  as  one  kept  in  the  regular  course  of  business. 
Fulton's  Estate.  178  Pa.  78. 

An  entry  of  a  special  transaction  not  in  the  usual  course  of  busi- 
ness is  not  admissible.     Stuckslager  v.  Neel,  123  Pa.  53. 

Time  of  entry. —  Kaughley  v.  Brewer,  16  S.  &  R.  133;  Wollen- 
weber  v.  Ketterlinus,  17  Pa.  389;  Keim  v.  Rush,  5  W.  &  S.  377; 
Parker  v.  Donaldson,  2  W.  &  S.  9 ;  Rhoads  v.  Gaul,  4  Rawle,  404. 

To  be  admitted,  the  entries  must  have  been  made  at  the  time  of 
the  transaction.  Fairchild  v.  Dennison,  4  Watts,  258;  Walter  v. 
Bollman,  8  Watts,  544;  Hoover  v.  Gehr,  62  Pa.  136. 


170  A  DIGEST  OF  [Part  I. 

Under  certain  circumstances,  entries  made  from  two  to  four  weeks 
after  the  occurrences  are  admissible.  Laird  v.  Campbell,  100  Pa. 
159. 

Entries  made  regularly  at  the  end  of  each  week  held  admissible. 
Yearsley's  Appeal,  48  Pa.  531. 

Charges  made  in  the  book  before  the  goods  were  sold  are  not  ad- 
missible.   Laird  v.  Campbell,  100  Pa.  159. 

Illustration  (e). — ■  Sitler  v.  Gehr,  105  Pa.  577. 

In  suits  between  third  parties. —  Books  of  a  bank  not  admissible 
to  prove  a  deposit  in  a  suit  between  third  parties  unless  the  clerk 
making  the  entries  be  dead  or  beyond  the  jurisdiction.  Bank  v. 
Officer,  12  S.  &  R.  49;  Ridgway  v.  Bank,  12  S.  &  R.  256;  Gochcnaucr 
v.  Good,  2  P.  &  W.  174. 

Book  of  original  entry  is  not  admissible  in  a  suit  between  third 
parties  to  prove  a  collateral  fact.  Bank  v.  Brown,  5  S.  &  R.  226; 
Winter  v.  Newell,  49  Pa.  507. 

Authentication  of  entries. —  The  maker  of  the  entry  should  be 
called  to  prove  it.  Sterrett  v.  Bull,  1  Binn.  234;  Imhoff  v.  Smith, 
3  Phila.  381.  But  if  he  is  dead  or  absent  from  the  State,  his  hand- 
writing may  be  proved.  Hay  v.  Kramer,  2  W.  &  S.  137;  Alter  v. 
Berghaus,  8  Watts,  77;  Odell  v.  Culbert,  9  W.  &  S.  G6 ;  Hoover  v. 
Gehr,  62  Pa.  136. 

Erasures  and  alterations  must  be  explained  before  a  book  is  ad- 
missible. Churchman  v.  Smith,  6  Whart.  146;  Kline  v.  Gundrum, 
11  Pa.  242. 

Verified  copies  of  bank  books. —  Pepper  &  Lewis'  Digest  of  Laws. 
"Evidence,"  sees.  39-41. 

Article  28.* 

declarations  against  interest. 

A  declaration  is  deemed  to  be  relevant  if  the  declarant 

had  peculiar  means  of  knowing  the  matter  stated,  if  he  had 

no  interest  to  misrepresent  it,  and  if  it  was  opposed  to  his 

pecuniary  or  proprietary  interest.50    The  whole  of  any  such 

*  See  Note  XIX. 
50  These  are  almost  the  exact  words  of  Bayley,  J.,  in  Gleadow  v. 
Atkin,  1833,  1  Cromp.  &  M.  at  p.  423.     The  interest  must  not  be  too 
remote:  Smith  v.  Blakey,  1867,  L.  R.  2  Q.  B.  326. 


Chap.  IV.]  TEE  LAW  OF  EVIDENCE.  171 

declaration,  and  of  any  other  statement  referred  to  in  it 
is  deemed  to  be  relevant,  although  matters  may  be  stated 
which  were  not  against  the  pecuniary  or  proprietary  inter- 
est of  the  declarant ;  but  statements,  not  referred  to  in,  or 
necessary  to  explain  such  declarations,  are  not  deemed  to 
bo  relevant  merely  because  they  were  made  at  the  same 
time  or  recorded  in  the  same  place.51 

A  declaration  may  be  against  the  pecuniary  interest  of 
the  person  who  makes  it,  if  part  of  it  charges  him  with  a 
liability,  though  other  parts  of  the  book  or  document  in 
which  it  occurs  may  discharge  him  from  such  liability  in 
whole  or  in  part,  and  [it  seems]  though  there  may  be  no 
proof  other  than  the  statement  itself  either  of  such  liability 
or  of  its  discharge  in  whole  or  part.52 

A  statement  made  by  a  declarant  holding  a  limited 
interest  in  an;y  property  and  opposed  to  such  interest  is 
deemed  to  be  relevant  only  as  against  those  who  claim 
under  him,  and  not  as  against  the  reversioner.53 

An  endorsement  or  memorandum  of  a  payment  made 
upon  any  promissory  note,  bill  of  exchange,  or  other 
writing,  by  or  on  behalf  of  the  party  to  whom  such  pay- 
ment was  made,  is  not  sufficient  proof  of  such  payment 
to  take  the  case  out  of  the  operation  of  the  Statutes  of 

51  Illustrations  (a)    (b)  and  (c). 

52  Illustrations  (d)  and  (e). 

53  Illustration  (g)  ;  see  Lord  Campbell's  judgment  in  case  there 
quoted,  at  p.  177. 

54  9  Geo.  IV.  c.  14,  s.  3. 


172  A  DIGEST  OF  [Part  I. 

Limitation  ;54  but  any  such  declaration  made  in  any  other 
form  by  or  by  the  direction  of  the  person  to  whom  the 
payment  was  made  is,  when  such  person  is  dead,  sufficient 
proof  for  the  purpose  aforesaid.55 

Any  indorsement  or  memorandum  to  the  effect  above 
mentioned  made  upon  any  bond  or  other  specialty  by  a 
deceased  person,  is  regarded  as  a  declaration  against  the 
proprietary  interest  of  the  declarant  for  the  purpose  above 
mentioned,  if  it  is  shown  to  have  been  made  at  the  time 
when  it  purports  to  have  been  made  ;5G  but  it  is  uncertain 
whether  the  date  of  such  indorsement  or  memorandum  may 
be  presumed  to  be  correct  without  independent  evidence. 

Statements  of  relevant  facts  opposed  to  any  other  than 
the  pecuniary  or  proprietary  interest  of  the  declarant  are 
not  deemed  to  be  relevant  as  such.58 

Illustrations. 
(a)    The  question  is,  whether  a  person  was  born  on  a  particular 
day. 

55  Bradley  v.  James,  1853,  13  C.  B.  822.  Xewbould  v.  Smith,  1885, 
29  Ch.  Div.  882,  seems  scarcely  consistent  with  this.  It  was  a  de- 
cision of  North,  J.  On  appeal,  1886,  33  Ch.  Div.  127,  the  Court  ex- 
pressed no  opinion  on  the  admissibility  of  the  entry  rejected  by 
North,  J.;  and  see,  too,  the  appeal  to  the  House  of  Lords,  1889,  14 
App.  C'a.  423.  where  the  same  was  the  case. 

56  3  &  4  Will.  IV.  c.  42,  which  is  the  Statute  of  Limitations  relat- 
ing to  Specialties,  has  no  provision  similar  to  9  Geo.  IV.  c.  14,  s.  3. 
Hence,  in  this  case  the  ordinary  rule  is  unaltered. 

57  See  the  question  discussed  in  2  Ph.  Ev.  302-305,  and  Taylor,  ss. 
692-696:   and   see  Article   85. 

58  Illustration  {h). 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  173 

An  entry  in  the  book  of  a  deceased  man-midwife  in  these  words  is 
deemed  to  be  relevant: 59 

"  W.  Fowden,  Junr.'s  wife, 
Filius  circa  hor.  3  post  merid.  natus  H. 
W.  Fowden,  Junr., 

App.  22,  filius  natus, 

Wife,  £1  6s.  Id., 
Pd.  25  Oct.,  1768." 
(6)    The  question  is,  whether  a  certain  custom  exists  in  a  part  of 
a  parish. 

The  following  entries  in  the  parish  books,  signed  by  deceased 
church-wardens,  are  deemed  to  be  relevant — 

"  It   is   our   ancient   custom   thus  to   proportion   church-lay.     The 
chapelry  of  Haworth  pay  one-fifth,  &c." 
Followed  by — 

"  Received  of  Haworth,  who  this  year  disputed  this  our  ancient 
custom,  but  after  we  had  sued  him,  paid  it  accordingly  — -  £8,  and  f  1 
for  costs. "CO 

(c)  The  question  is,  whether  a  gate  on  certain  land,  the  property 
of  which  is  in  dispute,  was  repaired  by  A. 

An  account  by  a  deceased  steward,  in  which  he  charges  A  with  the 
expense  of  repairing  the  gate  is  deemed  to  be  irrelevant,  though  it 
would  have  been  deemed  to  be  relevant  if  it  had  appeared  that  A 
admitted  the  charge.61 

(d)  The  question  is,  whether  A  received  rent  for  certain  land. 

A  deceased  steward's  account,  charging  himself  with  the  receipt  of 
such  rent  for  A,  is  deemed  to  be  relevant,  although  the  balance  of  the 
whole  account  is  in  favour  of  the  steward. 62 

(e)  The  question  is,  whether  certain  repairs  were  done  at  A's  ex- 
pense. 

A  bill  for  doing  them,  receipted  by  a  deceased  carpenter,  is  deemed 

WHigham  v.  Ridgway,  2  Smith's  L.  C.  318. 

60  Stead  v.  Heaton,  1792,  4  T.  R.  669. 

61  Doe  v.  Beviss,  1849,  7  C.  B.  456. 

62  Williams  v.  Graves,  1838,  8  C.  &  P.  592. 


174  A  DIGEST  OF  [Pabt  I. 

,     (  relevant^    ) 
to  be  J.  I  there  being  no  other  evidence  either  that  the  re- 

|  irrelevant^  (  ° 

pairs  were  done  or  that  the  money  was  paid. 

(/)  The  question  is,  whether  A  (deceased)  gained  a  settlement  in 
the  parish  of  B  by  renting  a  tenement. 

A  statement  made  by  A,  whilst  in  possession  of  a  house,  that  he 
had  paid  rent  for  it,  is  deemed  to  be  relevant,  because  it  reduces  the 
interest  which  would  otherwise  be  inferred  from  the  fact  of  A's  pos- 
session.^ 

{g)  The  question  is,  whether  there  is  a  right  of  common  over  a 
certain  field. 

A  statement  by  A,  a  deceased  tenant  for  a  term  of  the  land  in 
question,  that  he  had  no  such  right,  is  deemed  to  be  relevant  as 
against  his  successors  in  the  term,  but  not  as  against  the  owner  of 
the  field.66 

(h)   The  question  is,  whether  A  was  lawfully  married  to  B. 

A  statement  by  a  deceased  clergyman  that  he  performed  the  mar- 
riage under  circumstances  which  would  have  rendered  him  liable  to  a 
criminal  prosecution,  is  not  deemed  to  be  relevant  as  a  statement 
against  interest.67 

AMERICAN  NOTE. 
General. 

Authorities. —  9  Am.  &  Eng.  Encyclopaedia  of  Law   ( 2d  ed. ) ,  p.  7 ; 

1  Greenleaf  on  Evidence  (15th  ed. ),  sec.  147  et  seq.;  2  Taylor  on 
Evidence  (Chamberlayne's  9th  ed.),  sec.  068  et  seq.;  Rand  v.  Dodge, 
17  N.  H.  343,  360. 

A  declaration  in  disparagement  of  title  is  admissible  under  this 
article.     Potter  v.  Waite,  55  Conn.  236,  10  Atl.  503. 

The  interest  must  be  pecuniary.     Com.  v.  Chabbock,  1  Mass.  143. 

Declarations  of  a  deceased  landowner  are  admissible  to  prove  a 
right  of  way  over  it.     Rowell  v.  Doggett,  143  Mass.  483. 

63  7?.  v.  Lower  Heyford,  1840,  note  to  Higham  v.  Ridgway,  1808, 

2  Smith's  L.  C.  329. 

MDoe  v.  Vowlcs,  1833,  1  Mo.  &  Ro.  261.  In  Taylor  v.  Witham, 
1876,  3  Ch.  Div.  605,  Jessel,  M.R.,  followed  R.  v.  Lower  Heyford, 
and  dissented  from  Doe  v.  Votcles. 

65  R.  v.  Exeter,  1869,  L.  R.  4  Q.  B.  341. 

66  Papendick  v.  Bridgeicater,  1855,  5  E.  &  B.  166. 

6T  Sussex  Peerage  Case,  1844,  11  C.  &  F.  at  p.  108. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  175 

A  declaration  of  a  former  owner  in  disparagement  of  title  is  ad- 
missible under  this  article.  Inhabitants  of  West  Cambridge  v.  In- 
habitants of  Lexington,  2  Pick.    (Mass.)   536. 

The  declaration  may  be  oral  or  written.  County  of  Mahaska  v. 
Ingalls,  16  la.  81;  Baker  v.  Taylor,  54  Minn.  71;  Marcy  v.  Stone,  8 
Cush.  (Mass.)  4. 

Death  of  declarant. —  The  declaration  is  admitted  only  on  proof 
of  death.  Davis  v.  Fuller,  12  Vt.  178,  36  Am.  Dec.  334;  Trammel  v. 
H adman,  78  Ala.  222;  Fitch  v.  Chapman,  10  Conn.  8;  Currier  v.  Gale, 
14  Gray    (Mass.),   504. 

Must  be  against  interest. —  Hinkley  v.  Davis,  6  N.  H.  210,  25  Am. 
Dec.  457;  Chase  v.  Smith,  5  Vt.  556;  Dvoight  v.  Brown,  9  Conn.  83, 
92;  Taylor  v.  Gould,  57  Pa.  152;  Hart  v.  Kendall,  82  Ala.  144;  La- 
mar v.  Pearre,  90  Ga.  377;  Dean  v.  Wilkinson,  126  Ind.  338;  Zim- 
merman v.  Bloom,  43  Minn.  163;  Com.  v.  Densmore,  12  Allen  (Mass.), 
537. 

Statute  of  limitations. —  Massachusetts  Public  Statutes,  c.  197, 
sec.  16,  and  Maine  Rev.  Stat.,  c.  81,  sec.  100,  are  similar  to  9  Geo. 
IV.,  c.  14,  sec.  3,  cited  in  the  note.  See  also  Libby  v.  Brown,  78  Me. 
492;  Rogers  v.  Anderson,  40  Mich.  290;  Indiana  Rev.  Stat.,  sec.  303; 
Wisconsin  Rev.  Stat.,  sec.  4247. 

An  indorsement,  after  the  statute  has  run,  is  not  a  declaration 
against  interest.     Coon's  Appeal,  52  Conn.   186. 

Indorsements. —  Modifying  the  rule  of  the  text :  Clap  v.  Ingersol, 
2  Fairf.  (Me.)  83;  Coffin  v.  Bucknam,  3  Fairf.  (Me.)  471.  See 
Clough  v.  McDaniel,  58  N.  H.  201 ;  Runner's  Appeal,  121  Pa.  St.  649; 
Haver  v.  Schwyhart,  39  Mo.  App.  303;  White  v.  Beaman,  85  X.  C.  o. 

It  must  appear  affirmatively  that  the  indorsement  was  made  at  a 
time  when  it  was  against  the  interest  of  the  creditor.  Read  v.  Hurd, 
7  Wend.  410;  Mills  v.  Davis,  113  N.  Y.  243;  Matter  of  Kellogg,  104 
N.  Y.  648,  5  N.  Y.  St.  R.  668,  citing  Risley  v.  Wight  man,  13  Hun, 
163;  Hulbert  v.  Nichol,  20  Hun,  454;  Roseboom  v.  Billington,  17 
Johns.  182. 

New  Jersey. 

Indorsements. —  An  indorsement  of  a  payment  on  a  note  made  by 
one  now  dead  is  admissible  as  being  against  interest,  but  only  when 
made  before  the  period  of  the  Statute  of  Limitations  has  run.  Stand- 
ing alone  it  is  not  then  sufficient  evidence  to  remove  the  bar  of  the 
statute.     Christopher  v.  Wilkins,  64  N.  J.  Eq.  354. 

Declarations  adverse  to  one's  title. —  Meeker  v.  Boyland,  28  N.  J.  L. 
274. 


176  A  DIGEST  OF  [Part  I. 

Maryland. 

Authorities. — Coale  v.  Harrington,  7  H.  &  J.  147;  Railroad  Co.  v. 
Manro,  32  Md.  280. 

The  declarations  of  a  party  paying  out  the  money  of  a  third  per- 
son on  his  request  are  not  admissible  because  not  sufficiently  against 
the  declarant's  interest.     Railroad  Co.  v.  Manro,  32  Md.  280. 

Pennsylvania. 

Declarations  of  deceased  persons  against  interest. —  Taylor  v. 
Gould,  57  Pa.  152;  tiohensack  v.  Mailman,  17  Pa.  154. 

Declarations  against  interest  made  by  the  husband  prior  to  his 
marriage  are  admissible  in  favor  of  creditors  as  against  the  wife. 
Barnes  v.  Black,  193  Pa.  447. 

The  acts  of  one  now  dead  performed  by  him  against  his  own  inter- 
est are  admissible  in  favor  of  those  who  claim  through  him.  Alle- 
gheny v.  Nelson,  25  Pa.  332. 

Entries  in  one's  books  against  interest  are  admissible.  Canal  Co. 
v.  Loyd,  4  W.  &  S.  393. 

Declarations  against  proprietary  interest.  Hiester  v.  Laird,  1 
\V.  &  S.  245;  Sergeant  v.  Ingersoll,  15  Pa.  343. 

Instances. —  Declarations  of  a  trustee  that  a  certain  investment 
was  made  out  of  the  trust  fund  are  admissible.  Bank  v.  Tyler,  3 
YV.  &  S.  373. 

Declarations  of  an  executor  that  certain  funds  belonged  to  the 
estate  are  admissible.     Stair  v.  Bank,  55  Pa.  364. 

A  declaration  of  trust  by  one  holding  title  to  land  is  admissible. 
King  v.   Weible,   10   Pa.   Co.   Ct.   521. 

An  admission  of  marriage  is  an  admission  against  interest.  Sei- 
bert's  Estate,  17  Wkly.  iNotes  Cas.  271. 

Indorsements. —  Modifying  the  rule  of  the  text.  Runner's  Appeal, 
1  -1 !  Pa.  649. 

Indorsements  not  admissible  unless  proved  to  have  been  made  at  a 
time  when  they  were  against  interest.  Adams  v.  Seitzenger,  1  Serg. 
&  R.  243. 

Indorsements  by  the  holder  of  a  bill  or  note  may  be  admissible 
oven  though  such  holder  be  alive.  But  it  must  be  shown  by  ex- 
trinsic evidence  that  the  indorsement  was  made  at  a  time  when  the 
action  on  the  note  was  not  barred  by  the  Statute  of  Limitations,  for 
otherwise  the  indorsement  would  not  be  regarded  as  against  interest. 
Shaffer  v.  Shaffer,  41  Pa.  51 ;  Clark  v.  Burn,  86  Pa.  502. 


Chap.  IV.]  ■  THE  LAW  OF  EVIDENCE.  177 


Article  29. 
declarations   by  testators  as  to  contents  of  will. 

The  declarations  of  a  deceased  testator  as  to  his  testa- 
mentary intentions,  and  as  to  the  contents  of  his  will,  are 
deemed  to  be  relevant 

when  his  will  has  been  lost,  and  when  there  is  a  question 
as  to  what  were  its  contents ;  and 

when  the  question  is  whether  an  existing  will  is  genuine 
or  was  improperly  obtained ;  and 

when  the  question  is  whether  any  and  which  of  more 
existing  documents  than  one  constitute  his  will. 

In  all  these  cases  it  is  immaterial  whether  the  declarations 
were  made  before  or  after  the  making  or  loss  of  the  will.68 

AMERICAN  NOTE. 
General. 

Authorities. —  2  Taylor  on  Evidence  ( Chaniberlayne's  9th  ed. ) , 
sec.  1203  A;  McKelvey  on  Evidence,  p.  213;  Collagan  v.  Burns,  57 
Me.  449;  Pickens  v.  Davis,  134  Mass.  252,  45  Am.  Rep.  322;  Leonard 
v.  Quintan,  121  Mass.  579. 

On  the  issue  of  undue  influence,  declarations  are  admissible. 
Denison's  Appeal,  29  Conn.  402;  Canada's  Appeal,  47  Conn.  463. 

^Sugden  v.  St.  Leonards,  1876,  L.  R.  1  P.  D.  (C.  A.)  154:  and  see 
Gould  v.  Lakes,  1880,  L.  R.  6  P.  D.  1.  In  questions  between  the  heir 
and  the  legatee  or  devisor  such  statements  would  probably  be  rele- 
vant as  admissions  by  a  privy  in  law,  estate,  or  blood.  Gould  v. 
Lakes,  1880,  L.  R.  6  P.  D.  1 ;  Doe  v.  Palmer,  1851,  16  Q.  B.  747.  The 
decision  in  this  case  at  p.  757,  followed  by  Quick  v.  Quick,  1864,  3 
Sw.  &  Tr.  442,  is  overruled  by  Sugden  v.  St.  Leonards. 

12 


178  A  DIGEST  OF  [Part  I. 

In  ejectment,  evidence  of  directions  to  the  scrivener  to  make  a 
different  disposition  by  will  than  that  made  is  inadmissible.  Chap- 
pel  v.  A  very,  6  Conn.  34. 

Lost  will. —  In  re  Johnson's  Will,  40  Conn.  587;  McDonald  v.  Mc- 
Donald, 142  Ind.  55;  In  re  Page,  118  111.  576;  Valentine's  Will,  93 
Wis.  45;  Apperson  v.  Dowdy,  82  Va.  776;  Behrens  v.  Behrens,  4T 
O.  St.  323;  Byers  v.  Hoppe,  66  Md.  206;  In  re  Lambie,  97  Mich.  49. 

Different  wills. —  On  the  question  of  admitting  a  will  to  probate,, 
declarations  of  the  testator  that  he  meant  a  prior  will  to  take  effect 
and  supposed  it  would  are  admissible.  Canada's  Appeal,  47  Conn. 
463.  See,  also,  Valentine's  Will,  93  Wis.  45 ;  Estate  of  Johnson,  57 
Cal.  529. 

A  testator's  declarations  are  admissible  to  prove  the  publication 
of  the  will.  Lane  v.  Lane,  95  N.  Y.  494;  Gilbert  v.  Knox,  52  N.  Y. 
125. 

New  Jersey. 

Want  of  capacity. —  Conduct  and  declarations  of  the  testator  at 
time  of  making  the  will  are  admissible  to  show  want  of  capacity 
or  fraud.  Meeker  v.  Boylan,  28  N.  J.  L.  274;  Den.  v.  Van  Cleve,  2 
South.  589,  654;  Pancoast  v.  Graham,  15  N.  J.  Eq.  295;  Boylan  v^ 
Meeker,  15  N.  J.  Eq.  310;  Matter  of  Vanderveer,  20  N.  J.  Eq.  463; 
8.  C,  modified,  21  N.  J.  Eq.  561 ;  Day  v.  Day,  3  N.  J.  Eq.  549. 

Declarations  of  testator  are  admissible  to  show  the  condition  of 
his  mind,  not  to  prove  undue  influence.  Middleditch  v.  Williams, 
47  N.  J.  Eq.  585,  reversing  8.  C,  45  N.  J.  Eq.  726. 

Declarations  of  a  testator  admitted  to  show  the  real  consideration 
of  a  deed  expressed  on  its  face  as  love  and  affection,  to  prove  the 
transaction  not  an  advancement.  Tlattersley  v.  Bissett,  50  N.  J.  Eq. 
577,  51   N.  J.   Eq.  597. 

Contents  of  a  will  shown  by  testator's  declarations  as  to  his  inten- 
tions.    Den.  v.  Van  Cleve,  2  South.  677. 

Latent  ambiguity. —  Declarations  of  a  testator  are  admissible  to 
explain  a  latent  ambiguity  in  his  will.  Griscom  v.  Evens,  40 
N.  J.  L.  402 :  Burnet  v.  Burnet,  30  N.  J.  Eq.  595 ;  Den.  V.  Cubberly, 
7  Hal.  308:  Hand  v.  Huffman,  3  Hal.  71;  Eaton  v.  Cook.  25  N.  J.  Eq. 
55;  Evans  v.  Hooper,  3  N.  J.  Eq.  204. 

Forgery  of  will. —  Where  issue  is  whether  a  will  is  a  forgery,  dec- 
larations of  alleged  testator  not  admissible.  Gordon's  Case,  50  N.  J. 
Eq.  397,  52  N.  J.  Eq.  317. 


CiiAr.  IV.]  THE  LAW  OF  EVIDENCE.  179 

Declarations  not  admissible.  — Declarations  of  a  testator  at  the 
time  of  making  his  will  as  to  his  meaning  or  intention  or  the  in- 
structions to  the  scrivener  are  not  admissible.  Yard  v.  Cart/tan, 
Pen.  936;  Vernon  v.  Marsh,  3  N.  J.  Eq.  502;  Leigh  v.  Saoidge,  14 
N.  J.  Eq.  124;  Lynch  v.  Clements,  24  N.  J.  Eq.  431;  Jones  v.  Jones, 
13  N.  J.  Eq.  236;  Evans  v.  Hooper,  3  N.  J.  Eq.  204;  Massaker  v. 
Massaker,  13  N.  J.  Eq.  264. 

Maryland. 

Lost  will. — Byers  v  Hoppe,  06  Md.  206. 

Declarations  of  a  testator  are  admissible  as  corroborative  evi- 
dence of  the  execution  of  a  certain  will,  but  not  until  other  direct 
evidence  of  the  fact  is  given.     Hoppe  v.  Byers,  60  Md.  381. 

Capacity  to  make  a  will. — -  Declarations  of  a  testator  made  while 
sane  to  the  effect  that  he  was  crazy  when  he  made  a  v. ill  are  ad- 
missible as  to  his  capacity  to  make  such  will.  Colvin  v.  Warford, 
20  Md.  357. 

Declarations  of  a  testator  are  admissible  on  the  question   of  un- 
due influence  and  fraud  to  show  his  mental  condition.      Griffith    \ 
Dieffenderffer, 50  Md.  466. 

Intention  of  testator. — ■  The  instructions  given  to  the  draftsman 
by  the  testator  arc  not  admissible  to  show  his  intention.  Frick  v. 
Frick,  82  Md.  218. 

Declarations  of  the  testator  are  not  admissible  to  render  a  will 
inoperative.  Sewell  v.  SUngluff,  57  Md.  537 ;  Moore  v.  McDonald, 
68  Md.  321. 

Such  declarations  are  not  admissible  to  aid  in  the  interpretation 
of  a  will.     Zimmerman  v.  Hafer,  81  Md.  347. 

Pennsylvania. 

Contents  of  a  lost  will  may  be  proved  by  declarations  of  the  tes- 
tator.    Foster's  Appeal,  87  Pa.  67. 

Declarations  of  testatrix  admitted  to  show  weakness  of  mind  on 
question  of  undue  influence.  Robinson  v.  Robinson,  203  Pa.  400: 
Rambler  v.  Tryon.  7  S.  &  R.  00. 

Declarations  of  a  testator  are  not  admissible  as  direct  proof  to 
establish  a  paper  as  his  will,  but  may  be  given  in  corroboration. 
Such  testimony  is  dangerous.     Sirope  v.  Donnelly,  190  Pa.  417. 

Extrinsic  evidence  allowed  to  prove  the  intention  of  the  testator. 
Sharp  v.  Wightman,  205  Pa.  285. 


180  A    DIGEST    OF  [Part  I. 

Article  30.69 
declarations  as  to  public  and  general  rights. 

Declarations  are  deemed  to  be  relevant  (subject  to  the 
third  condition  mentioned  in  the  next  article)  when  they 
relate  to  the  existence  of  any  public  or  general  right  or 
custom  or  matter  of  public  or  general  interest.  But  declara- 
tions as  to  particular  facts  from  which  the  existence  of  any 
such  public  or  general  right  or  custom  or  matter  of  public  or 
general  interest  may  be  inferred,  are  deemed  to  be  irrelevant. 

A  right  is  public  if  it  is  common  to  all  Her  Majesty's 
subjects,  and  declarations  as  to  public  rights  are  relevant 
whoever  made  them. 

A  right  or  custom  is  general  if  it  is  common  to  any 
considerable  number  of  persons,  as  the  inhabitants  of  a 
parish,  or  the  tenants  of  a  manor. 

Declarations  as  to  general  rights  are  deemed  to  be 
relevant  only  when  they  were  made  by  persons  who  are 
shown,  to  the  satisfaction  of  the  judge,  or  who  appear  from 
the  circumstances  of  their  statement,  to  have  had  competent 
means  of  knowledge. 

Such  declarations  may  be  made  in  any  form  and  manner. 

69  See  Note  XX.  Also  see  Weeks  v.  Sparke,  1813,  1  M.  &  S.  679; 
Crease  v.  Barrett,  1.835,  1  C.  M.  &  R.  919.  Article  5  has  much  in 
common  with  this  article.  Lord  Blackburn's  judgment  in  Neill  v. 
Duke  of  Devonshire,  1882,  L.  R.  8  App.  Ca.,  pp.  186,  187,  especially 
explains  the  law. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  LSI 

Illustrations. 

(a)   The  question  is,  whether  a  Toad  is  public. 

A  statement  by  A  (deceased)  that  it  is  public  is  deemed  to  be 
relevantJO 

A  statement  by  A  (deceased)  that  he  planted  a  willow  (still  stand- 
ing) to  show  where  the  boundary  of  the  road  had  been  when  he  was 
a  boy  is  deemed  to  be  irrelevant.?1 

(6)  The  following  are  instances  of  the  manner  in  which  declara- 
tions as  to  matters  of  public  and  general  interest  may  be  made:  — 
They  may  be  made  in 

Maps  prepared  by  or  by  the  direction  of  persons  interested  in  the 
matter;  72 

Copies  of  Court  rolls  ;73 

Deeds  and  leases  between  private  persons ;74 

Verdicts,  judgments,  decrees,  and  orders  of  Courts,  and  similar 
bodies75  if  finals 

AMERICAN   NOTE. 
General. 

Authorities. —  9  Am.  &  Eng.  Encyclopaedia  of  Law   (2d  ed.),  p.  9 
2   Taylor   on  Evidence    (Chamberlayne's   9th   ed.),   sec.   607  et  seq. 
Lawrence  v.  Tennant,  64  N.  H.  543;  Hampson  v.  Taylor,  15  R.  I.  83 
Wooster  v.  Butler,  13  Conn.  309;   8.  W.  Sch.  Dist.  v.  Williams,  48 
Conn.  504;  Drury  v.  Midland  R.  R.  Co.,  127  Mass.  571:  Dillingham 
V.  Snow,  5  Mass.  552;   People  v.   Velarde,  59   Cal.  457:    Shuttle  v. 
Thompson,  15  Wall.  151;  Mullaney  v.  Duffy,  145  111.  559;   Young  v. 
Kansas  City,  etc.,  R.  Co.,  39  Mo.  App.  52;  Thoen  v.  Roche.  57  Minn. 
135;  Birmingham  v.  Anderson,  40  Pa.  506. 

Ancient  deeds  and  wills  are  sometimes  admissible  to  provf  private 
matters.       Oldtown  v.  Shapleigh,  33  Me.  278;   Greenfield  v.  Camden, 

70  Crease  v.  Barrett,  per  Parke,  B.,  1835,  1  C.  M.  &  R.  at  p.  929. 

71  R.  v.  Bliss,  1S37,  7  A.  &  E.  550. 

72  Implied  in  Hammond  v.  Bradstreet ,  1854,  10  Ex.  390,  and  Pipe  v. 
Fulcher,  1858,  1  E.  &  E.  111.  In  each  of  these  cases  the  map  was 
rejected  as  not  properly  qualified. 

73  Crease  v.  Barrett,  1835,  1  C.  M.  &  R.  at  p.  92S. 
upiaxton  v.  Dare,  1829,  10  B.  &  C.  17. 

is  Duke  of  Newcastle  v.  Broxtowe,  1832,  4  B.  &  Ad.  273. 
7e  Pim  v.  Currell,  1840,  6  M.  &  W.  234,  266. 


182  A  DIGEST  OF  [Part  I. 

74  Me.  56;  Ward  v.  Oxford,  8  Pick.  (Mass.)  476;  Wright  v.  Boston, 
126  Mass.  161. 

The  position  of  a  line  separating  two  towns  is  a  matter  of  public 
interest,  and  declarations  are  admissible,  even  though  they  concern 
the  position  of  a  single  house,  as  related  to  that  line.  Abington  v. 
North  Bridgeicater,  23  Pick.   (Mass.)   170,  174. 

The  incorporation  of  a  town  may  be  proved  by  declarations.  Dil- 
lingham v.  Snow,  5  Mass.  547. 

Declarations  as  to  private  rights  are  generally  inadmissible. 
Boston,  etc.,  Co.  v.  Hanlon,  132  Mass.  4S3. 

The  declarant  must  be  dead.  Flagg  v.  Mason,  8  Gray  (Mass.), 
556;  Whitney  v.  Bacon,  9  Gray  (Mass.),  206. 

Under  this  rule  the  declarations  of  owners  and  tenants  in  posses- 
sion only  are  admissible.    Bartlett  v.  Emerson,  7  Gray  (Mass.),  174. 

The  declarations  of  one  holding  under  a  bond  for  a  deed  may  be 
admissible.    Niles  v.  Patch,  13  Gray  (Mass.),  254. 

Boundary  cannot  be  shown  by  tradition.  Hall  v.  Mayo,  97  Mass. 
41G. 

Deeds  and  leases. —  Drury  v.  Midland  R.  R.  Co.,  127  Mass.  571. 

Ancient  records. —  See  Willey  v.  Portsmouth,  35  X.  H.  303. 

Ancient  records  of  a  town,  showing  the  location  of  a  highway,  are 
admissible.     State  v.  Yale  Mills,  63  X.  H.  4. 

Maps. —  As  to  the  admissibility  of  maps,  see  Smith  v.  Forrest,  49 
N.  II.  230 ;  McCausland  v.  Fleming,  63  Pa.  St.  36. 

Private  boundaries.—  The  declarations  of  a  landowner  as  to  the 
location  of  his  boundaries,  made  while  pointing  them  out,  are  ad- 
missible. Royal  v.  Chandler,  33  Me.  150;  Child  v.  Kingsbury,  46 
Vt.  47;  Powers  v.  Silby,  41  Vt.  28S.  Contra,  Chapman  v.  Twitchell, 
37  Me.  59. 

They  have  been  held  admissible  in  some  States,  if  not  made  while 
pointing  out  boundaries.  Smith  v.  Forrest,  49  N.  H.  230;  Lawrence 
v.  Tennant,  04  X.  II.  .">:>2 ;   Great  Falls  v.  Worster,  15  X.  H.  437. 

It  has  been  held  that  if  it  was  for  the  interest  of  the  declarant  to 
misstate  at  the  time  he  made  the  declaration,  it  is  inadmissible. 
Child  v.  Kingsbury.  46  Vt.  47,  53. 

The  rule  as  to  declarations,  with  reference  to  private  boundary,  is 
confined  to  monuments  and  lines  and  boundaries,  but  does  not  ex- 
tend to  acts  of  ownership,  or  possession,  or  to  any  other  facts. 
Wcndall  v.  Abbott,  45  X.  H.  349. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  183 

Private  boundary  may  not  be  proved  by  declarations  of  deceased 
persons  not  accompanying  any  act  performed  upon  the  land.  Hay- 
den  v.  Stone,  121  Mass.  413. 

Declarations  of  a  deceased  owner  of  land,  as  to  his  boundary,  made 
while  in  possession,  and  in  the  act  of  pointing  out  his  boundaries, 
are  admissible  if  no  interest  to  misrepresent  them  at  the  time  ex- 
isted. Currier  v.  Gale,  14  Gray  (Mass.),  504;  Wood  v.  Foster,  8 
Allen  (Mass.),  24;  Daggett  v.  Shaw,  5  Mete.  223;  Bartlett  v.  Emer- 
son, 7  Gray  (Mass.),  171;  Davis  v.  Sherman,  7  Gray  (Mass.),  291; 
Holmes  v.  Turner's  Falls  Co.,  150  Mass.  535;  Robinson  v.  Dewhurst, 
OS  Ted.  Rep.  336.  So  when  made  by  surveyors  or  others  with  knowl- 
edge. Kramer  v.  Goodlander,  98  Pa.  St.  366;  Clement  v.  Packer,  125 
U.  S.  309;  Fry  v.  Stoioers,  92  Va.  13:  Bethea  v.  Byrd,  95  N.  C.  3*09; 
Lemmon  v.  Hartsoolc,  80  Mo.  13. 

The  declarations  of  ancient  persons  as  to  private  boundaries  are 
admissible.  Swift's  System,  p.  244;  1  Swift's  Digest,  side  p.  766; 
Swift's  Evidence,  p.  123;  Wooster  v.  Butler,  13  Conn.  316;  Kinney 
v.  Famsworth,  17  Conn.  363;  Higley  v.  Bidwell,  9  Conn.  451;  Mer- 
win  v.  Morris,  71  Conn.  572.  Contra,  in  ease  of  interested  persons, 
Porter  v.  Warner,  2  Root  (Conn.),  22. 

Particular  facts  inadmissible. —  Sustaining  text:  S.  W.  Sch.  Dist. 
v.  Williams,  48  Conn.  504 ;  Noyes  v.  Ward,  19  Conn.  250,  269 ;  Woos- 
ter  v.  Butler,  13  Conn.  316;  Hall  v.  Mayo,  97  Mass.  416. 

New  Jersey. 

Private  boundaries. —  Declarations  as  to  boundary  made  by  an 
owner  of  land  while  on  the  ground  and  pointing  out  such  boundary 
are  admissible,  if  he  had  no  interest  to  misrepresent  at  the  time. 
Curtis  v.  Aaronson,  49  N.  J.  L.  68. 

A  map  indorsed  by  a  former  owner  is  competent  evidence  of  bound- 
ary.    Opdyke  v.  Stephens,  28  N.  J.  L.  84. 

Pennsylvania. 

Boundaries. —  Declarations  of  a  deceased  surveyor  are  receivable 
to  prove  public  boundaries.     Birmingham  v.  Anderson,  40  Pa.  506. 

Reputation  and  hearsay  received  as  to  boundary.  Nieman  v. 
Ward,  1  W.  &  S.  68 ;  Birmingham  v.  Anderson,  40  Pa.  506 ;  Bu- 
chanan v.  Moore,  10  S.  &  R.  275;  Bender  v.  Pitzer,  27  Pa.  333. 


184  A  DIGEST  OF  [Part  L 

An  ancient  draft  from  proper  custody  admissible  to  prove  bound- 
ary.    McCausland  v.  Fleming,  63  Pa.  36. 

Declarations  of  a  former  owner  as  to  boundary.  Dawson  v.  Mills, 
32  Pa.  302;  Gratz  v.  Beates,  45  Pa.  495. 

Declarations  of  a  deceased  owner  of  ^nd,  as  to  his  boundary,  made 
while  in  possession,  and  in  the  act  of  pointing  out  his  boundaries, 
are  admissible  if  no  interest  to  misrepresent  them  at  the  time  ex- 
isted. So  when  made  by  surveyors  or  others  with  knowledge.  Kra- 
mer v.  Goodland'er,  98  Pa.  366. 

Maps. —  As  to  the  admissibility  of  maps,  see  McCausland  v.  Flem- 
ing, 63  Pa.  36. 

Ancient  facts. —  Reputation  in  ancient  tilings  and  ancient  docu- 
mentary evidence  are  admissible.  Old  Eagle  School,  36  Wkly.  Notes 
Cas.  348. 

An  unofficial  survey  and  the  field  notes  thereof  are  not  admissible 
however  ancient.     Rogers  v.  Coal  &  Iron  Co.,  31  Leg.  Int.  325. 

Such  evidence  was  admitted  to  establish  the  identity  of  land  sold 
for  taxes.     Russell  v.  Werntz,  24  Pa.  337. 


Article  31.* 
declarations  as  to  tedigree. 

A  declaration  is  deemed  to  be  relevant  (subject  to  the 
conditions  hereinafter  mentioned)  if  it  relates  to  the 
existence  of  any  relationship  between  persons,  whether 
living  or  dead,  or  to  the  birth,  marriage,  or  death  of  any 
person,  by  which  such  relationship  was  constituted,  or  to 
the  time  or  place  at  which  any  such  fact  occurred,  or  to 
any  fact  immediately  connected  with  its  occurrence.'7 

Such  declarations  may  express  either  the  personal  know- 
ledge of  the  declarant,  or  information  given  to  him  by  other 
persons  qualified  to  be  declarants,  but  not  information 
collected  by  him  from   persons   not  qualified  to  be  de- 

77  Illustration  (c).  *  See  Note  XXI. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  185 

clarants.78  They  may  be  made  in  any  form  and  in  any 
document  or  upon  anything  in  which  statements  as  to 
relationship  are  commonly  made.79 

The  conditions  above  referred  to  are  as  follows : — 

( 1 )  Such  declarations  are  deemed  to  be  relevant  only  in 
cases  in  which  the  pedigree  to  which  they  relate  is  in  issue, 
and  not  to  cases  in  which  it  is  only  relevant  to  the  issue  ;80 

(2)  They  must  be  made  by  a  declarant  shown  to  be 
legitimately  related  by  blood  to  the  person  to  whom  they 
relate ;  or  by  the  husband  or  wife  of  such  a  person.81 

(3)  They  must  be  made  before  the  question  in  relation 
to  which  they  are  to  be  proved  has  arisen;  but  they  do 
not  cease  to  be  deemed  to  be  relevant  because  they  were 
made  for  the  purpose  of  preventing  the  question  from 
arising. 

This  condition  applies  also  to  statements  as  to  public 
and  general  rights  or  customs  and  matters  of  public  and 
general  interest. 

7S  Davies  v.  Lowndes,  1843,  6  M.  &  G.  at  p.  527. 

79  Illustration   (d). 

80  Illustration   (6). 

81  Shrewsbury  Peerage  Case,  1857,  7  H.  L.  C.  26.  For  Scotch  law, 
see  Lauderdale  Peerage  Case,  1885,  L.  R.  10  App.  Ca.  692;  also  Lovat 
Peerage  Case,  1885,  ib.  763.  In  In  re  Turner,  Glenister  v.  Harding, 
1885,  29  Ch.  Div.  985,  a  declaration  by  a  deceased  reputed  father  of 
his  daughter's  illegitimacy  was  admitted  on  grounds  not  very  clear 
to  me:  and  on  the  authority  of  two  Nisi  Prius  cases,  Morris  v. 
Davies,  1825,  3  C.  &  P.  215,  and  Cope  v.  Cope,  1833,  1  Mo.  &  Ro.  269. 
See  note  to  Article  34. 

82  Berkeley  Peerage  Case.  1811,  4  Cam.  401-417;  and  see  Lovat 
Peerage,  1885,  10  App.  Ca.  797. 


186  A  DIGEST  OF  [Part  I. 

Illustrations. 

(a)  The  question  is,  which  of  three  sons  (Fortunatus,  Stephanus, 
and  Achaicus)   born  at  a  birth  is  the  eldest. 

The  fact  that  the  father  said  that  Achaicus  was  the  youngest,  and 
he  took  their  names  from  St.  Paul's  Epistles  (see  1  Cor.  xvi.  17) ,  and 
the  fact  that  a  relation  present  at  the  birth  said  that  she  tied  a 
string  round  the  second  child's  arm  to  distinguish  it,  are  relevant.83 

(b)  The  question  is,  whether  A,  sued  for  the  price  of  horses  and 
pleading  infancy,  was  on  a  given  day  an  infant  or  not. 

The  fact  that  his  father  stated  in  an  affidavit  in  a  Chancery  suit  to 
which  the  plaintiff  was  not  a  party,  that  A  was  born  on  a  certain 
day,  is  irrelevant.84 

(c)  The  question  is,  whether  one  of  the  cestuis  que  vie  in  a  lease 
for  lives  is  living. 

The  fact  that  he  was  believed  in  his  family  to  be  dead  is  deemed 
to  be  irrelevant,  as  the  question  is  not  one  of  pedigree.85 

{d)  The  following  are  instances  of  the  ways  in  which  statements 
as  to  pedigree  may  be  made:  By  family  conduct  or  correspondence; 
in  books  used  as  family  registers;  in  deeds  and  wills;  in  inscriptions 
on  tombstones,  or  portraits;  in  pedigrees,  so  far  as  they  state  the 
relationship  of  living  persons  known  to  the  compiler.86 

AMERICAN   NOTE. 

General. 

Authorities. — 18  Am.  &  Eng.  Encyclopaedia  of  Law  (1st  ed.), 
p.  258  et  seq.;  Abbott's  Trial  Evidence   (2d  ed.),  p.  115  et  seq. 

Hearsay  evidence  on  questions  of  pedigree  is  not  admissible,  unless 
the  party  who  made  the  declarations  or  entries  can  be  named,  and 
is  deceased,  and  appears  to  have  been  a  relative  or  a  connection,  or 
an  inmate  of  the  family,  and  to  have  made  the  declarations  or  entries 

83Vin.  Abr.,  1731,  tit.  Evidence,  T.  b.  91.  The  report  calls  the  son 
Achicus. 

84  Guthrie  v.  Haines,  1884,  13  Q.  B.  D.  818.  In  this  case  all  the 
authorities  on  this  point  are  fully  considered. 

85  Whittuck  v.  Walters,  1830,  4  C.  &  P.  375. 

86  In  1  Ph.  Ev.  203-215;  Taylor,  ss.  648-652;  and  Roscoe's  N.  P. 
44-46,  these  and  many  other  forms  of  statement  of  the  same  sort 
are  mentioned ;  and  see  Davies  v.  Lowndes,  1843,  6  M.  &•  G.  at  pp. 
526,  527. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  187 

under  such  circumstances  as  preclude  any  presumption  of  interest  or 
bias.     Chapman  v.  Chapman,  2  Conn.  349. 

It  is  not  enough  to  show  a  general  declaration  that  such  an  one 
inherited  a  particular  estate  and  was  a  relative  of  its  former  owner, 
but  the  particular  relationship  must  be  pointed  out,  and  it  must  be 
such  as  to  make  the  person  indicated  heir  to  such  estate.  Chapman 
v.  Chapman,  2  Conn.  350. 

An  authenticated  copy  of  a  record  of  a  birth,  made  from  a  state- 
ment of  the  mother,  is  admissible.     Derby  v.  Salem,  30  Vt.  722. 

Slight  proof  of  relationship  is  sufficient.  Northrop  v.  Hale,  76 
Me.  306,  309,  49  Am.  Rep.  615;  Faulkerson  v.  Holmes,  117  U.  S.  38. 

One  may  testify  as  to  his  own  age.  Com.  v.  Stevenson,  142  Mass. 
466;  State  v.  Marshall,  137  Mo.  463;  People  v.  Ratz,  115  Cal.  132; 
Morrison  v.  Emsley,  53  Mich.  564;  Conn.  Life  Ins.  Co.  v.  Schwenk, 
94  U.  S.  593,  598   (age  is  a  question  of  pedigree). 

And  the  jury  may  consider  his  personal  appearance.  Com.  v. 
Phillips,  162  Mass.  504;  Hermann  v.  State,  73  Wis.  248. 

What  may  be  shown. — First  paragraph  of  text.  Morrill  v. 
Foster.  33  N.  H.  379;  Fulkerson  v.  Holmes,  117  U.  S.  389;  Pickens's 
Estate,  163  Pa.  14;  Jackson  v.  Jackson,  80  Md.  176;  Cuddy  v.  Brown, 
78  111.  415;  Shorten  v.  Jndd,  56  Kan.  43;  Robb's  Estate,  37  S.  C. 
19;  Haddock  v.  B.  &  M.  R.  R.  Co.,  3  Allen  (Mass.),  298. 

Death  is  a  question  of  pedigree.     Webb  v.  Richardson,  42  Vt.  465. 

Pedigree  in  issue. —  Modifying  rule  of  the  text.  North  Brookfield 
v.  Warren,  16  Gray  (Mass.),  174. 

Place. —  The  place  of  birth  cannot  be  thus  shown.  Greenfield  v. 
Camden,  74  Me.  56;  Tyler  v.  Flanders,  57  N.  H.  618;  Union  v.  Plain- 
field,  39  Conn.  564.  565. 

Nor  can  the  former  place  of  residence.  Londonderry  v.  Andover, 
28  Vt.  416.  See  Jackson  v.  Jackson,  80  Md."  176;  Byers  v.  Wal- 
lace, S7  Tex.  503.  511  :  Wise  v.  Wynn,  59  Miss.  588;  Adams  v.  Swan- 
sea, 116  Mass.  591,  596;  Wilmington  v.  Burlington,  4  Pick.  (Mass.) 
174. 

Death  of  declarant. —  The  declarant  must  be  dead.  Northrop  v. 
Hale,  76  Me.  306 ;  Mooers  v.  Bunker,  29  N.  H.  420 ;  Chapman  v.  Chap- 
man, 2  Conn.  347.  7  Am.  Dec.  277. 

Whose  declarations  admissible. —  Northrop  v.  Hale,  76  Me.  306; 
Waldron  v.  Tut  tie,  4  N.  H.  371  ;  Haddock  v.  B.  cf-  il/.  i?.  /?.  Co.,  3  Al- 
len (Mass.),  298,  81  Am.  Dec.  656. 

Common  repute  cannot  be  shown.  Blaisdell  v.  Bickum,  139  Mass. 
250. 


188  A  DIGEST  OF  [Part  I. 

There  can  be  no  evidence  of  pedigree,  except  such  as  consists  of 
the  declarations  of  relatives  of  the  family.  Inhabitants  of  South 
Hampton  v.  Fowler,  54  N.  H.  197 ;  Sitler  v.  Gehr,  105  Pa.  St.  577. 

As  to  what  is  embraced  under  "  general  reputation  in  the  family," 
see  In  re  Hurlburt's  Estate,  6S  Vt.  366,  35  Atl.  77,  35  L.  R.  A. 
794. 

Family  reputation,  based  upon  declarations  of  deceased  members, 
may  be  shown.  Hurlburt's  Estate,  68  Vt.  366,  35  Atl.  77,  35  L.  R.  A. 
794;  Eastman  v.  Martin,  19  N.  H.  152;  Garland  v.  Eastman,  107  111. 
535;  Eaton  v.  Talmadge,  24  Wis.  217;  Pickens's  Estate,  163  Pa.  14. 

Ante  litem  motam. —  Northrop  v.  Hale,  76  Me.  306,  49  Am.  Rep. 
615.  Sustaining  text:  Chapman  v.  Chapman,  2  Conn.  347;  Com. 
v.  Felch,  132  Mass.  23;  Stein  v.  Bowman,  13  Pet.  209;  Metheny  v. 
Bohn,  160  111.  263;  Barnum  v.  Barnum,  42  Md.  251,  304. 

Form. —  Parchment  pedigree  and  inscription  on  tombstone  are 
admissible.  North  Brookfteld  v.  Warren,  16  Gray  (Mass.),  171;  Mc- 
Claskey  v.  Barr,  54  Fed.  Rep.  781  (parchment  pedigree  and  tomb- 
stone) ;  Greenleaf  v.  Dubuque,  etc.,  R.  Co.,  30  la.  301  (family  Bible); 
Pearson  v.  Pearson,  46  Cal.  610  (will)  ;  Fulkerson  v.  Holmes,  117 
U.  S.  389    (deeds)  ;  Scharff  v.  Keener,  64  Pa.  St.  376    (deeds). 

Source  of  information. —  Second  paragraph  of  text.  Eisenlord  v. 
Clum,  126  N.  Y.  552,  565. 

Death. —  Death  may  be  a  question  of  pedigree.  Clark  v.  Owens, 
18  N.  Y.  434;  People  v.  Miller,  30  Misc.  Rep.  355,  14  N.  Y.  Cr.  407, 
63  N.  Y.  Supp.  949. 

How  made. —  Second  paragraph  of  text  (last  sentence).  Eisen- 
lord v.  Clum,  126  N.  Y.  552,  566. 

Family  conduct. —  The  declaration  may  be  by  acts  as  family  con- 
duct.    Clark  v.  Owens,  18  N.  Y.  434. 

Written  declarations. —  The  declarations  may  be  made  in  writing. 
Jackson  v.  Cooley,  8  Johns.  128,  131;  Jackson  v.  Russell.  4  Wend. 
543. 

Family  Bible. —  A  family  Bible  is  admissible  to  prove  the  date  of 
a  birth.     McDeed  v.  McDecd.  67  111.  546. 

New  Jersey. 

General  rule  admitting  hearsay  evidence  of  pedigree. —  Westfield 
v.   Warren,  3  Hal.  249. 

As  to  manner  of  making  statements  as  to  pedigree,  see  Bussom  v. 
Forsyth,  32  N.  J.  Eq.  277. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  189 

Recognition  by  kinsmen. —  Where  legitimacy  is  in  question,  evi- 
dence that  the  kinsmen  of  the  parents  recognized  the  child  as  a  rela- 
tion is  admissible  to  prove  the  marriage.  Gaines  v.  Mining  Co.,  32 
N.  J.  Eq.  86,  33  N.  J.  Eq.  603. 

Family  record. —  A  family  record  of  births  held  inadmissible. 
Houston  v.  Cooper,  Pen.  866. 

Marriage. —  Declarations  are  not  admissible  to  prove  the  existence 
of  marriage  as  an  independent  fact.  Westfield  v.  Warren,  3  Hal. 
249. 

Such  declarations  admissible  to  prove  the  fact  of  marriage,  when 
the  question  in  issue  is  pedigree.  Westfield  v.  Warren,  3  Hal.  249; 
E.  Windsor  v.  Montgomery,  4  Hal.  39. 

A  marriage  certificate  is  competent  evidence  of  the  marriage  on 
a  question  of  legitimacy  when  properly  authenticated.  Gaines  v. 
Mining  Co.,  33  N.  J.  Eq.  603,  32  N.  J.  Eq.  86. 

Place  of  birth. —  Declaration  of  a  father  not  admissible  to  prove 
the  place  of  a  child's  birth.     Independence  v.  Pompton,  4  Hal.  209. 


Maryland. 

General  authorities. —  Barnum  v.  Barnum,  42  Md.  251;  Jones  v. 
Jones,  36  Md.  447;  Pancoast  v.  Addison,  1  H.  &  J.  350;  Raborg  v. 
Hammond,  2  H.  &  G.  42;  State  v.  Greenwell,  4  G.  &  J.  407. 

Hearsay  is  admitted  as  to  matters  of  pedigree  on  the  ground  of 
necessity.     Copes  v.  Pearce,  7  Gill,  247. 

Suspicion  and  doubt  may  reasonably  attach  to  such  declarations 
by  reason  of  antiquity  and  chances  for  error.  Sprigg  v.  Moale,  26 
Md.  497. 

The  former  place  of  residence  cannot  be  thus  shown.  See  Jackson 
v.  Jackson,  80  Md.   176. 

Family  reputation  admitted  to  show  which  of  two  brothers  died 
first.     Raborg  v.  Hammond,  2  H.  &  J.  42. 

Tradition  in  a  family  that  a  member  thereof  died  seized  of  cer- 
tain real  estate  was  admitted.     Pancoast  v.  Addison,  1  H.  &  J.  350. 

Family  Bible. —  Entries  in  a  family  Bible  are  admissible  without 
proof  that  they  were  made  by  a  member  of  the  family.  Weaver  v. 
Leiman,  52  Md.  708.  Tf  the  book  is  produced  from  proper  custody. 
Jones  v.  Jones,  45  Md.   144. 

Entries  in  a  Bible  made  years  after  the  event  are  entitled  to  little 
weight.     Ameij  v.  Cockey,  73  Md.  297. 


L90  A  DIGEST  OF  [Pakt  I. 

Relationship.—  Common  reputation  admitted  to  prove  that  two 
persons  were  brothers  of  the  whole  blood.  Johnson  v.  Howard,  1 
H.  &  McH.  281. 

Declarations  of  members  of  the  family  are  admissible  to  deter- 
mine who  are  next  of  kin.    Jones  v.  Jones,  36  Md.  447. 

The  term  "  pedigree "  includes  descent  and  relationship,  and  the 
facts  of  birth,  marriage,  and  death.  Craufurd  v.  Blackburn,  17  Md. 
49:   Copes  v.  Pearce,  7  Gill,  247. 

Relationship  of  declarant. —  The  declarant  must  be  proved  by  ex- 
trinsic evidence  to  be  connected  with  at  least  one  branch  of  the 
family.  Craufurd  v.  Blackburn,  17  Md.  49;  Jackson  v.  Jackson,  SO 
Md.   176. 

Ante  litem  motam. —  Sustaining  text:  Barnum  v.  Barnum,  42  Md. 
251,  304. 

Marriage  and  legitimacy. —  Declarations  of  deceased  persons  are 
admissible  on  the  question  of  legitimacy,  and  to  prove  a  marriage 
at  a  particular  time.    Jackson  v.  Jackson,  80  Md.  176. 

Marriage  may  be  proved  by  declarations  of  the  parties  made  ante 
litem  motam.  Craufurd  v.  Blackburn,  17  Md.  49;  Barnum  v.  Bar- 
num, 42  Md.  251. 

Personal  resemblance. —  Relationship  cannot  be  proved  by  evidence 
of  personal  resemblance.     Jones  v.  Jones,  45  Md.  144. 

General  reputation. —  Whether  general  reputation  is  admissible  see 
Boone  v.  Purnell,  28  Md.  607. 

Illustration  (a). —  Weaver  v.  Leiman,  52  Md.  708. 

Pennsylvania. 

What  may  be  proved. —  Family  reputation  admissible  to  prove 
one's  age.  Watson  v.  Breicster,  1  Pa.  381;  Carskadden  v.  Poorman, 
10  Watts,  82;  Albertson  v.  Robeson,  1  Dall.  9. 

Descent  and  relationship,  birth,  marriage,  and  death.  Trust  Co. 
v.  Rosenagle,  11  Pa.  507 ;  Pickens's  Estate,  163  Pa.  14. 

Legitimacy  of  children  may  be  proved  by  the  declarations  of  their 
parents.     Kenyon  v.  Ashbridge,  35  Pa.  157. 

Family  reputation,  based  upon  declarations  of  deceased  members, 
may  bo  shown.     Pickens's  Estate,  163  Pa.   14. 

Family  conduct  or  reputation  is  admissible.  Watson  v.  Breicster, 
1  Pa.  381. 

Ancient  hearsay  ante  litem  motam.     Strickland  v.  Poole,  1  Dall.  14. 

Relationship   of   declarant. —  Such   declarations   are   admissible   if 


Cuai\  IV.]  THE  LAW  OF  EVIDENCE.  101 

shown  to  have  been  made  by  a  member  of  the  same  family,  though 
not  of  the  same  branch.     Hitler  v.  Gehr,  105  Pa.  577. 

The  fact  of  relationship  must  be  proved  by  evidence  outside  of  the 
declaration  itself.     Sitter  v.  Gehr,  105  Pa.  577. 

Form  of  statement. —  The  statement  may  be  in  a  will.  Kenyon  v. 
Ashbridge,  35  Pa.   157;   Richard  v.  Brehm,  73  Pa.   140. 

The  statement  may  be  in  the  form  of  a  deposition.  Life  Ins.  Co. 
v.  Rosenagle,  77  Pa.  507. 

Letters  addressed  to  the  wife.     Vincent's  Appeal,  GO  Pa.  228. 

An  inscription  on  a  tombstone  relating  to  pedigree  was  rejected 
because  of  lack  of  proof  as  to  the  identity  of  the  person  buried  be- 
neath the  stone.     Gehr  v.  Fisher,  143  Pa.  311. 

Bible  entries. —  Family  Bible  entries  not  admissible  when  mere 
copies  of  another  record.     Curtis  v.  Patton,  6  S.  &  R.  135. 

Entry  in  the  family  Bible  admitted  to  prove  age.  Carskadden  V. 
Poorman,   10  Watts,  82. 

Leaf  from  a  family  Bible  received.  Douglass  v.  Sanderson,  2  Dall. 
116;   8.  C,   1  Yeates,   15. 

Deeds. —  Recitals  in  a  deed  are  admissible  as  to  pedigree.  Paxton 
v.  Price,  1  Yeates,  500;  Appeal  of  Bicking,  2  Brewst.  202;  Bowser 
v.  Cravener,  56  Pa.  132;  Scharff  v.  Keener,  64  Pa.  376;  Morris  v. 
Vanderen,   1   Dall.  64. 

A  recital  in  a  deed  as  to  pedigree  is  not  admissible  in  favor  of 
the  grantor.     Murphy  v.  Loyd,  3  Whart.  538. 

Akticle  32.* 

evidence  given  in  former  proceedings  when  relevant. 

Evidence  given  by  a  witness  in  a  previous  action  is 
relevant  for  the  purpose  of  proving  the  matter  stated  in  a 
subsequent  proceeding,  or  in  a  later  stage  of  the  same  pro- 
ceeding, when  the  witness  is  dead,8"  or  is  mad,88  or  so  ill  that 
he  will  probably  never  be  able  to  travel,89  or  is  kept  out  of 

*  See  Note  XXII. 

87  Mayor  of  Doncaster  v.  Day,  1810,  3  Tau.  262. 

88  R.  v.  Eriswell,  1790,  3  T.  R.  720. 
8»  R.  v.  Hogg,  1833,  6  C.  &  P.  176. 


192  A  DIGEST  OF  [Part  I. 

the  way  by  the  adverse  party,90  or  in  civil,  but  not,  it  seems, 
in  criminal,  cases,  is  out  of  the  jurisdiction  of  the  Court,91 
or,  perhaps,  in  civil,  but  not  in  criminal,  cases,  when  he  can- 
not be  found.92 

Provided  in  all  cases  — 

(1)  That  the  person  against  whom  the  evidence  is  to  be 
given  had  the  right  and  opportunity  to  cross-examine  the 
declarant  when  he  was  examined  as  a  witness  ;93 

(2)  That  the  questions  in  issue  were  substantially  the 
same  in  the  first  as  in  the  second  proceeding  ;93 

Provided  also  — 

(3)  That  the  proceeding,  if  civil,  was  between  the  same 
parties  or  their  representatives  in  interest  ;93 

(4)  That,  in  criminal  cases,  the  same  person  is  accused 
upon  the  same  facts.94 

If  evidence  is  reduced  to  the  form  of  a  deposition,  the 
provisions  of  Article  90  apply  to  the  proof  of  the  fact  that  it 
was  given. 

The  conditions  under  which  depositions  may  be  used  as 
evidence  are  stated  in  Articles  140-142. 


90  R.  v.  Scaife,  1851,  17  Q.  B.  238,  243. 

91  Fry  v.  Wood,  1737,  1  Atk.  444;  R.  v.  Scaife,  1851,  17  Q.  B.  at 
p.  243. 

»2Godbolt,  1623,  p.  326,  case  418;  R.  v.  Scaife,  1851,  17  Q.  B.  at 
p.  243. 

93  Doe  v.  Tatham,  1834, 1  A.  &  E.  3,  19;  Doe  v.  Derby,  1834,  1  A.  &  E. 

783,  785,   789.     See,  as  a  late  illustration,  as  to  privies  in  estate, 

Llanover  v.  Homfray,  1880,  19  Ch.  Div.  224.     In  this  case  the  first  set 

of  proceedings  was  between  lords  of  the  same  manor  and  tenants  of 

the  same  manor  as  the  parties  to  the  second  suit. 

94  Beeston's  Case,  1854,  Dears.  405. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  193 


AMERICAN  NOTE. 

General. 

Authorities. — 11  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.), 
p.  523  et  seq.;  1  Greenleaf  on  Evidence   (15th  ed.),  sec.  163  et  seq. 

Former  testimony  before  arbitrators  may  be  proved.  Bailey  v. 
Woods,  17  N.  H.  365. 

As  to  the  testimony  of  parties,  see  Blair  v.  Ellsworth,  55  Vt.  415. 

Evidence  at  preliminary  hearing. —  The  rule  allows  the  admission 
of  evidence  at  a  preliminary  examination  if  the  party  against  whom 
it  is  offered  was  present.  Rex  v.  Barber,  1  Root  (Conn.),  76;  State 
v.  Hooker,  17  Vt.  658;  Com.  v.  Richards,  18  Pick.  (Mass.)  434,  29 
Am.  Dec.  608. 

Deceased  witness. —  Sustaining  text:  Watson  v.  Lisbon  Bridge, 
14  Me.  201;  Orr  v.  Hadleij,  36  N.  H.  575;  Glass  v.  Beach,  5  Vt.  172; 
Matheivson  v.  Sargeant,  36  Vt.  142;  Johnson  v.  Poioers,  40  Vt.  611; 
Earl  v.  Tupper,  45  Vt.  275;  Chase  v.  Spring  Vale  Mills  Co.,  75  Me. 
156;  Mattox  v.  U.  S.,  156  U.  S.  237;  Barnett  v.  People,  54  111.  325; 
State  v.  Elliott,  90  Mo.  350;  State  v.  George,  60  Minn.  503;  Lane  v. 
Brainerd,  30  Conn.  565;  Woods  v.  Keyes,  14  Allen  (Mass.),  238,  92 
Am.  Dec.  766;  Corey  v.  Jones,  15  Gray  (Mass.).  543;  Com.  v.  Rich- 
ards, 18  Pick.  (Mass.)  434,  29  Am.  Dec.  608;  Warren  v.  Nichols,  6 
Mete.  (Mass.)  261;  Yale  v.  Comstock,  112  Mass.  267;  Costigan  v. 
Lunt,  127  Mass.  355;  Radclyffe  v.  Barton,  161  Mass.  327;  Thornton 
v.  Britton,  144  Pa.  126;  Stout  v.  Cook,  47  111.  530;  Cassaday  v.  Trus- 
tees, 105  111.  560;  Benson  v.  Shoticell,  103  Cal.  163;  Hudson  v.  .Roos, 
76  Mich.  173;  Minn.  Mill.  Co.  v.  Minn.,  etc.,  R.  Co.,  51  Minn.  504. 

Insane  witness. —  Sustaining  text.  Whitaker  v.  Marsh,  62  N.  H. 
477 ;  Stein  v.  Swcnson,  46  Minn.  360 ;  Howard  v.  Patrick,  38  Mich. 
795. 

Illness  of  witness. —  Illness  is  sometimes  held  sufficient  to  allow 
testimony  to  come  in  under  the  rule  of  this  article.  Chase  v. 
Spring  Vale  Mills  Co.,  75  Me.  156;  Scoville  v.  Hannibal,  etc.,  R.  Co., 
94  Mo.  84. 

In  criminal  cases  the  illness  of  a  witness  does  not  render  his 
former  testimony  admissible.  State  v.  Staples,  47  N.  H.  113;  Com. 
v.  McKenna,  158  Mass.  207. 

13 


194  A  DIGEST  OF  [Paet  I. 

Forgetful  witness. —  The  mere  fact  that  the  witness  cannot  recall 
the  facts  does  not  render  the  evidence  competent.  Robinson  v.  Gil- 
man,  43  N.  H.  295. 

Absent  witness. —  The  former  testimony  of  an  absent  witness  can- 
not be  shown  in  a  criminal  case.  U.  S.  v.  Angell,  11  Fed.  Rep.  34; 
People  v.  Gordon,  99  Cal.  227;  Pitman  v.  State,  92  Ga.  480;  Gastrell 
v.  Phillips,  64  Miss.  473;  Bemey  v.  Mitchell,  34  N.  J.  L.  337.  Contra, 
Thompson  v.  State,  106  Ala.  (when  indefinite)  ;  McNamara  v.  State. 
60  Ark.  400. 

Witness  spirited  away. —  One  under  indictment  induced  a  wit- 
ness who  had  testified  against  him  before  the  grand  jury  to  go 
away,  so  that  he  could  not  be  had  before  the  petit  jury.  Held,  that 
the  State  might  prove  what  the  witness  stated  before  the  grand 
jury.    Rex  v.  Barber,  1  Root  (Conn.),  76. 

The  right  to  cross-examine  in  previous  trial. — Johnson  v.  Powers, 
40  Vt.  611;  Wheeler  v.  Walker,  12  Vt.  427;  Reynolds  v.  U.  S.,  98  U. 
S.  145,  159;  Wright  v.  Cunesty,  41  Pa.  St.  102,  111;  Black  v.  Wood- 
row,  39  Md.  194. 

Same  parties. —  Lane  v.  Brainerd,  30  Conn.  565 ;  Orr  v.  Hadley, 
36  N.  II.  575;  Johnson  v.  Powers,  40  Vt.  611 ;  Earl  v.  Tupper,  45  Vt. 
275 ;  Chase  v.  Spring  Vale  Mills  Co.,  75  Me.  156 ;  Walbridge  v.  Knip- 
per,  96  Pa.  48,  51;  Marshall  v.  Hancock,  80  Cal.  82;  Allen  v.  Cho- 
teau,  102  Mo.  309;  Phil.,  W.  &  B.  R.  R.  Co.  v.  Howard,  13  How.  (U. 
S.)   307. 

Similarity  of  issues. —  Sustaining  text.  Melvin  v.  Whiting,  7 
Pick.  (Mass.)  79;  Radclyffe  v.  Barton,  161  Mass.  327;  Lane  v.  Brain- 
erd, 30  Conn.  565;  Orr  v.  Hadley,  36  N.  H.  575. 

Who  may  testify. —  Any  one  who  heard  the  former  testimony  may 
give  evidence  as  to  what  was  said.  Emery  v.  Fowler,  39  Me.  326 ; 
Sage  v.  State,  127  Ind.  15;  Hatchings  v.  Corgan,  59  111.  70  (juror)  ; 
Hepler  v.  Bank,  97  Pa.  420;  Harrison  v.  Charlton,  42  la.  573;  Bank 
v.  Leonard,  40  Neb.  677;  Woods  v.  Keyes,  14  Allen   (Mass.),  236. 

As  for  instance  an  attorney.  Earl  v.  Tupper,  45  Vt.  275 ;  Costigan 
v.  Lunt,  127  Mass.  354. 

It  has  been  held  however  that  he  must  give  substantially  the 
language  used.  Costigan  v.  Lunt,  127  Mass.  354;  Woods  v.  Keyes, 
14  Allen  (Mass.),  238,  92  Am.  Dec.  766;  Warren  v.  Nichols,  6  Mete. 
(Mass.)  267:  Corey  v.  Jones,  15  Gray  (Mass.),  545;  Com.  v.  Rich- 
ards, 18  Pick.  (Mass.)  434,  29  Am.  Dec.  608;  Yale  v.  Comstock,  112 
Mass.  267. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  19J» 

The  witness  need  state  only  the  substance  of  the  testimony.  Lime 
Rock  Bank  v.  Hewett,  52  Me.  531;  Emery  v.  Fowler,  39  Me.  326,, 
63  Am.  Dec.  627;  Wung  v.  Dearborn,  22  N.  H.  377;  Marsh  v.  Jones, 
21  Vt.  378,  52  Am.  Dec.  67;  Williams  v.  Willard,  23  Vt.  369;  John- 
son v.  Powers,  40  Vt.  611;  Ruch  v.  Rock  Island,  97  U.  S.  693;  State 
v.  Able,  65  Mo.  357;  ,S*afe  v.  O'Brien,  81  la.  88. 

How  proven. —  The  former  testimony  may  be  proved  by  witnesses 
or  from  the  stenographer's  minutes  duly  authenticated.  Yale  v.  Corn- 
stock,  112  Mass.  267;  Quinn  v.  Ualbert,  57  Vt.  178.  Or  by  the  judge's 
minutes  properly  authenticated.  Johnson  v.  Powers,  40  Vt.  611;. 
Whitcher  v.  Morey,  39  Vt.  459.  See  also  Luetgert  v.  Volker,  153  111. 
385;  Labor  v.  Crane,  56  Mich.  585;  Jackson  v.  State,  81  Wis.  127; 
Davis  v.  Kline,  96  Mo.  401    (bill  of  exceptions). 

Judge's  notes  not  admissible. — S chafer  v.  Schafer,  93  Ind.  586,  588. 

Stenographer's  report. —  Where  a  stenographer  has  testified  that, 
his  record  is  correct  and  that  he  has  no  recollection,  his  report  is 
admissible.  Keith  v.  State,  157  Ind.  376;  Biggins  v.  State,  157 
Ind.  57. 

Bill  of  exceptions. —  In  order  to  prove  prior  testimony  of  a  de- 
ceased witness  by  a  bill  of  exceptions,  it  must  be  proved  that  the 
bill  of  exceptions  contains  a  correct  statement.  Fisher  v.  Fisher, 
131  Ind.  462,  463. 

New  Jersey. 
•    Absent  witness. —  The  former  testimony  of  an  absent  witness  can- 
not be  shown  in  a  criminal  case.     Bemey  v.  Mitchell,  34  N.  J.  L. 
337. 

Mere  absence  from  the  jurisdiction  and  refusal  to  attend  does  not 
authorize  the  admission  of  testimony  taken  at  a  prior  cause.  Rail- 
road Co.  v.  Raring,  47  N.  J.  L.  139. 

How  former  testimony  is  proved. —  It  is  sufficient  to  prove  the 
substance  of  what  the  deceased  witness  testified.  Sloan  v.  Somers, 
Spen.  66;  Ramsay  v.  Dumars,  4  Harr.  66. 

A  witness  is  not  competent  to  prove  the  testimony  given  in  an- 
other trial,  unless  he  has  a  distinct  recollection  that  the  witness  in 
the  prior  trial  was  sworn ;  but  he  need  not  remember  the  exact 
words  of  the  testimony  if  he  knows  its  substance.  Sloan  v.  Somers, 
Spen.  66. 

Evidence  reduced  to  writing  cannot  be  proved  by  parol.  State  v. 
Zellers,  2  Hal.  220:   Sayre  v.  Sayre,  2  Green,  487. 


196  A  DIGEST  OF  [Past  I. 

The  fact  of  the  former  trial  must  be  proved  by  the  record  before 
evidence  can  be  admitted  as  to  what  a  witness,  since  deceased,  then 
testified.     Chambers  v.  Hunt,  2  Zab.  552. 

Books  of  account  must  be  proved,  even  though  they  were  proved 
at  a  former  trial.     Linberger  v.  Latourette,  2  South.  809. 

Before  arbitrators. —  Testimony  taken  before  arbitrators  in  the 
same  cause  is  not  admissible  even  though  the  witness  be  dead. 
Jessup  v.  Cook,  1  Hal.  434. 

Different  issues. —  Evidence  taken  in  another  cause  between  the 
same  parties  not  admissible.     Trimmer  v.  Larrison,  3  Hal.  56. 

By  order  of  court. —  Order  entered  that  two  suits  should  be  heard 
together  and  that  evidence  taken  in  one  should  be  used  in  the 
other.     Krans  v.  Evans,  23  N.  J.  Eq.  180. 

Statute. —  Testimony  of  a  deceased  party  at  a  former  trial.  G.  S. 
1895,  "  Evidence,"'   12. 

Maryland. 

General  authorities. —  Marshall  v.  Haney,  9  Gill,  251;  Jones  v. 
Jones,  45  Md.  144:  Calvert  v.  Coxe,  1  Gill,  95:  Bowie  v.  O'Neale,  5 
H.  &  J.  226. 

Witness  dead. —  Calvert  v.  Coxe,  1  Gill,  95;  Bowie  v.  O'Neale,  5 
H.  &  J.  226. 

Manner  of  proving. —  The  former  testimony  cannot  be  proved  by  a 
printed  copy  of  the  record,  but  it  may  be  by  one  who  heard  it.  Gis- 
riel  v.  Burrows,  72  Md.  366;  Price  v.  Lawson,  74  Md.  499. 

It  cannot  be  proved  by  the  introduction  of  the  bill  of  exceptions. 
Ecker  v.  McAllister,  54  Md.  362. 

The  one  testifying  as  to  what  a  witness  said  at  the  former  trial 
must  be  able  to  give  the  substance  of  the  whole  testimony,  not 
merely  what  the  witness  said  on  one  point.  Black  v.  Woodrow,  39 
Md.  194. 

The  exact  words  arc  not  required,  but  it  is  not  permissible  to  state 
merely  t lie  effect  of  such  former  testimony.  Black  v.  'Woodrow,  39 
Md.  194:  Bowie  v.  O'Neale,  5  H.  &  J.  226. 

A  cnpv  of  the  stenographer's  notes  is  not  admissible  to  prove  the 
testimony  given.    Flerrick  v.  Sicomlcy,  56  Md.  439. 

Attorney's  notes. —  An  attorney  is  a  competent  witness  to  prove 
such  testimony  and  his  notes  taken  at  the  time  may  be  used  to  re- 
fresh his  memory.     Waters  v.  Waters,  35  Md.  531. 

Identity  of  parties  and  issues. — Jones  v.  Jones,  45  Md.  144. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  197 

Testimony  of  one  deceased  given  in  a  former  trial  is  not  admis- 
sible against  one  not  a  party  to  that  action  or  in  privity  with  a 
party.     Tome  Institute  v.  Davis,  87   Md.  591. 

Opportunity  to  cross-examine. —  Jones  v.  Jones,  45  Md.  144. 

Pennsylvania. 

General  authorities. —  Arwin  v.  Bisbing,  1  Yeates,  400;  Insurance 
Co.  v.  Johnson,  23  Pa.  72;  Moore  v.  Pearson,  6  W.  &  S.  51;  Jones  v. 
Wood,  16  Pa.  25;  Wright  v.  Cumpsty,  41  Pa.  102;  Pratt  v.  Patterson, 
81  Pa,  114. 

Deceased  witness. —  Hawk  v.  (Ireensweig,  7  Pa.  Law  J.  374;  Beers 
v.  Cornelius,  1  Pittsb.  R.  274;  Walbridge  v.  Knippen,  96  Pa.  4s ; 
Brown  v.   Com.,  73   Pa.   321;    Thornton  v.  Britton,  144  Pa.   120. 

Such  evidence  not  admissible  if  witness  is  living  and  within  the 
jurisdiction.  Richardson  v.  Stewart,  2  S.  &  R.  84;  Chess  v.  Chess, 
17  S.  &  R.  409;  Huidekoper  v.  Cotton,  3  Watts,  56;  Lafferty's  Es- 
tate. 1S4  Pa.  502. 

Witness  sick  or  infirm. —  Perrin  v.  Wells,  155  Pa.  299;  Emig  v. 
Diehl,  76  Pa.  359:  Rothrock  v.  Gallagher,  91  Pa.  108;  Thornton  v. 
Britton.  144  Pa.  126:  WaZ6n'<2<7e  v.  Knippen,  96  Pa.  48;  McClain 
v.  Com.,  99  Pa.  86. 

Deposition  admissible  when  witness  is  too  sick  to  attend  or  has 
lost  his  memory.     Emig  v.  Diehl,  76  Pa.  359. 

Absence  from  jurisdiction. —  Ballman  v.  Heron,  169  Pa.  510;  Lohr 
v.   Philipsburgh,  165  Pa.  109. 

The  notes  of  the  testimony  of  a  witness  in  a  former  trial  of  the 
same  cause  may  be  read  in  evidence  if  the  witness  be  out  of  the 
State.     Giberson  v.  Mills  Co.,  187  Pa.  513. 

If  the  witness  is  beyond  the  jurisdiction,  his  former  testimony  is 
admissible.  Ma  gill  v.  Kauffman,  4  S.  &  R.  317;  Flanagin  v.  Leibert, 
Bright.  61. 

Identity  of  parties  and  issues. —  The  parties  to  the  former  suit 
must  be  identical  with  the  parties  of  the  present  one.  McCully  v. 
Barr,  17  S.  &  R.  445  ;  Norris  v.  Monen,  3  Watts,  465. 

The  issue  must  be  identical.  Harger  v.  Thomas.  44  Pa.  12S:  Sam- 
ple v.  Coulson.  9  W.  &  S.  62. 

Testimony  of  a  party  to  the  present  action  given  in  a  former 
action  between  other  parties  is  admissible  as  an  admission.  Flrmi- 
snn  v.  Coal  Co..  201  Pa.   122. 

The  right  to  cross-examine  in  previous  trial. —  Wright  v.  Cunzsty, 
41  Pa.  102,  111. 


198  A  DIGEST  OF  [Part  I. 

Evidence  taken  in  a  former  proceeding  not  admissible  when  the 
defendant  was  not  represented  by  counsel  and  was  not  told  of  his 
right  to  cross-examine.     Com.  v.  Lenousky,  206  Pa.  277. 

Preliminary  hearings. — Testimony  given  at  the  preliminary  hearing 
is  admissible,  the  witness  having  since  died.  Brovm  v.  Coin.,  73  Pa. 
740.  Even  though  the  defendant  waived  a  hearing.  Com.  v.  Keck, 
148  Pa.  039. 

Testimony  taken  before  a  coroner  is  admissible  when  duly  au- 
thenticated.    Edwards  v.   Gimbel,  202  Pa.  30. 

How  proved. —  The  former  testimony  may  be  proved  by  the  judge's 
notes,  if  sworn  to.  Miles  v.  O'Hctra,  4  Binn.  108;  Foster  v.  Shaw, 
7  S.  &  Pi.  156;  Livingston  v.  Cox,  8  W.  &  S.  61.  Or  by  notes  of  coun- 
sel. Gould  v.  Crawford,  2  Pa.  89;  Chess  v.  Chess,  17  S.  &  R.  409; 
Rhine  v.  Robinson,  27  Pa.  30;  Railroad  Co.  v.  Spearen,  47  Pa.  300. 
Or  by  any  witness  who  heard  the  testimony  and  can  give  its  sub- 
stance. Cornell  v.  Green,  10  S.  &  E.  14;  Chess  v.  Chess,  17  S.  &  R. 
409;  Wolf  v.  Wyeth,  11  S.  &  R.  149;  Hepler  v.  Alt.  Carmel  Bank,  97 
Pa.  420. 

The  entire  substance  of  such  former  witness'  testimony  must  be 
given,  but  not  the  exact  words.  Hepler  v.  Alt.  Carmel  Bank,  97  Pa. 
420. 

Stenographer's  notes  are  not  admissible ;  the  stenographer  must 
be  sworn.     Smith  v.  Hine,   179  Pa.  203. 

Statutory  rule. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Criminal  Pro- 
cedure," sec.  84;  ''Witnesses,"  sees.  6,  20. 

When  depositions  may  be  read  in  subsequent  causes.  Pepper  & 
Lewis'  Digest  of  Laws,  "  Evidence,"  sec.  1. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  199 


SECTION  II. 

STATEMENTS   IN   BOOKS,   DOCUMENTS,   AND 
RECORDS,  WHEN  RELEVANT. 

Article  33. 

recitals  of  public  facts  in  statutes  and 
proclamations. 

When  any  act  of  state  or  any  fact  of  a  public  nature  is  in 
issue  or  is  or  is  deemed  to  be  relevant  to  the  issue,  any 
statement  of  it  made  in  a  recital  contained  in  any  public 
Act  of  Parliament,  or  in  any  Royal  proclamation  or  speech 
of  the  Sovereign  in  opening  Parliament,  or  in  any  address 
to  the  Crown  of  either  House  of  Parliament,  is  deemed  to 
be  a  relevant  fact.95 

AMERICAN  NOTE. 
General. 

Authorities. —  9  Am.  &  Eng.  Encyclopaedia  of  Law,  p.  880  et  seq.; 
3  Taylor  on  Evidence  ( Chamber  layne's  9th  ed. ),  p.  1179  et  seq.; 
Whiton  v.  Albany,  etc.,  Ins.  Co.,  109  Mass.  24;  Worcester  v.  North- 
borough,  140  Mass.  397. 

Recitals  in  Federal  state  papers  published  by  congressional  author- 
ity and  in  diplomatic  correspondence  communicated  by  the  President 
to  Congress  are  within  the  article.  Armstrong  v.  U.  S.,  13  Wall. 
154;  Bryan  v.  Forsyth,  19  How.  334,  338;  Gregg  v.  Forsyth,  24  How. 
(U.  IS.)    179;   Watkins  v.    Holman,  16  Pet.  25,  55,  56. 

Recitals  in  the  official  precept  of  the  governor  are  within  this 
article.     Com.  v.  Hall,  9  Gray   (Mass.),  262. 

9R  R.  v.  Franclclin,  1731,  17  S.  T.  at  p.  636,  et  seq;  R.  v.  Sutton, 
1810.  4  M.  &,  S.  532. 


200  .i  DIGEST  OF  [Part  I. 

The  compendium  of  the  tenth  census,  printed  by  authority  of  Con- 
gress, is  admissible  to  show  the  population  of  a  town.  Fulham  v. 
Howe,  GO  Vt.  351,  14  Atl.  652. 

As  are  also  those  in  official  papers  prepared  in  the  adjutant- 
general's  office,  which  are  admissible  to  prove  that  a  certain  person 
was  or  was  not  assigned  to  a  particular  town  as  belonging  to  its- 
quota  of  soldiers.  Worcester  v.  Northborough,  140  Mass.  397,  5  N. 
E.  270. 

Legislative  journals  are  thus  admissible.  Root  v.  King,  7  Cow. 
613;  People  v.  Devlin,  33  N.  Y.  279,  88  Am.  Dec.  377.  And  so  are 
the  return  of  election  inspectors.  People  v.  Merick,  21  N.  Y.  539. 
And  municipal   records.     Denning  v.  Roome,  6  Wend.  651. 

Mere  official  reports  are  not.  Erickson  v.  Smith,  38  How.  Pr.  454 ; 
Swift  v.  State,  89  N.  Y.  52.  Nor  are  official  certificates  not  pro- 
vided for  by  statute.     Porter  v.  Waring,  69  N.  Y.  250. 

New  Jersey. 

A  statute  may  make  recitals  in  a  deed  issued  by  a  public  officer 
admissible  to  prove  the  proceedings  under  which  the  deed  was  issued. 
Woodbridge  v.  Allen,  43  N.  J.  L.  262. 

Pennsylvania. 

If  an  act  of  the  Legislature  rendering  a  bastard  legitimate  recites 
the  child's  parentage,  such  recital  is  prima  facie  evidence  of  the  fact. 
McOunnigle  v.  McKee,  11  Pa.  81. 

Article  34. 

relevancy  of  entry  in. public  record  made  in 
performance  of  duty. 

An  entry  in  any  record,  official  book,  or  register  kept  in 
any  of  Her  Majesty's  dominions  or  at  sea,  or  in  any  foreign 
country,  stating,  for  the  purpose  of  being  referred  to  by  the 
public,  a  fact  in  issue  or  relevant  or  deemed  to  be  relevant 
thereto,  and  made  in  proper  time  by  any  person  in  the  dis- 
charge of  any  duty  imposed  upon  him  by  the  law  of  the 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  201 

place  in  which  such  record,  book,  or  register  is  kept,  is  itself 
deemed  to  be  relevant  fact.96 

AMERICAN  NOTE. 
General. 

Authorities. — 3  Taylor  on  Evidence  (American  edition  of  1897), 
p.  117940  et  seq.;  McKelvey  on  Evidence,  p.  276;  9  Am.  &  Eng.  En- 
cyclopedia of  Law  (2d  ed.),  p.  882  et  seq.;  Gurney  v.  Howe,  9  Gray 
(Mass.),  404,  69  Am.  Dec.  229;  Pells  v.  Webquish,  129  Mass.  469; 
Hunt  v.  Chosen  Order  of  Friends,  64  Mich.  671,  8  Am.  St.  Rep.  855 
(church  records)  ;  Sandy  White  v.  U.  S.,  164  U.  S.  100;  Succession 
of  Justus,  48  La.  Ann.  1096;  Bell  v.  Kendrick,  25  Fla.  778;  Chicago 
R.  R.  Co.  v.  Trayes,  17  111.  App.  136  (weather  records)  ;  St.  Clair 
v.  U.  S.,  154  U.  S.  134  (ship  register)  ;  Evanston  v.  Gunn,  99  U.  S. 
660,  666. 

Only  such  statements  as  are  contained  in  such  documents  as  may 
be  made  in  the  regular  course  of  duty  are  included.  Erwin  v. 
English,  61  Conn.  502;  Rindge  v.  Walker,  61  N.  H.  C8;  U.  S.  v. 
Convin,  129  U.  S.  381. 

Instances. —  The  record  of  baptism  is  admissible  when  made  by  a 
deceased  minister.  Huntley  v.  Compstock,  2  Root  (Conn.),  100. 
So  is  a  certified  copy  of  the  inventory  of  an  insolvent  estate.  Field- 
ing v.  Silverstein,  70  Conn.  605. 

The  record  of  registered  letters,  at  a  post-office,  is  evidence,  and 
need  not  be  authenticated  by  the  clerk.  Gurney  v.  Howe,  9  Gray 
(Mass.),  404. 

MSturla  v.  Freccia,  1880,  5  App.  Ca.  623;  see  especially,  pp.  633-4, 
and  643-5;  Lyell  v.  Kennedy,  1889,  14  App.  Ca.  437;  Taylor,  ss. 
1591-1595.  See  also  Queen's  Proctor  v.  Fry,  1879,  4  P.  D.  230.  In 
Robinson  v.  The  Duke  of  Buccleuch  and  Queensbury,  1887,  3  Times 
L.  R.  472,  the  Court  of  Appeal  held  in  a  pedigree  case  that  neither  a 
baptism  nor  a  burial  certificate  was  evidence  of  the  age  of  the  person 
to  whom  they  related.  This  had  been  previously  doubted:  see  ///  re 
Turner;  Glenister  v.  Harding,  1885,  29  Ch.  Div.  at  pp.  990.  991; 
Morris  v.  Davies,  1825,  3  C.  &  P.  215;  and  Cope  v.  Cope,  1833.  1  Moo. 
&  Rob.  269.     See  note  to  Article  31,  ante,  p.  185,  note  81. 


202  A  DIGEST  OF  [Part  I. 

Tax  assessors'  books  are  admissible  in  suits  involving  the  issue  of 
adverse  possession.  Elwell  v.  Hinckley,  138  Mass.  225.  And  to  show 
in  whose  name  the  property  was  assessed  when  the  question  arose  on 
other  issues.    Edson  v.  Munsell,  10  Allen   (Mass.),  557. 

A  town  clerk's  record,  kept  in  accordance  with  statute,  is  com- 
petent but  not  exclusive  evidence  as  to  the  soldiers  who  comprised  the 
town's  quota.  Wayland  v.  Ware,  104  Mass.  46;  Hanson  v.  South 
Scituate,  115  Mass.  336. 

The  date  of  the  trial  of  a  case  in  the  lower  court  may  be  shown 
on  appeal  by  the  record  of  the  lower  court.  The  record  being  in  the 
same  case  need  not  be  formally  put  in  evidence.  Corn.  v.  Lane,  151 
Mass.  356. 

The  fact  that  testimony  within  this  article  is  admitted  does  not 
exclude  contradictory  parol  evidence.  Com.  v.  Waterman,  122 
Mass.  43. 

A  certificate  of  marriage  is  often  treated  as  an  original  document 
and  not  as  a  copy.  Northrop  v.  Knowles,  52  Conn.  525,  526 ;  Erwin 
v.  English,  61  Conn.  507;  State  v.  Schweitzer,  57  Conn.  537. 

As  to  entries  in  corporation  books,  see  Howard  v.  Hayward,  10 
Mete.  (Mass.)  408;  Ten  Eyck  v.  R.  R.  Co.,  74  Mich.  226;  R.  R. 
Co.  v.  Cunnington,  34  O.  St.  327 ;  Chase  v.  Sycamore,  etc.,  R.  Co.,  38 
111.  315. 

The  stock-books  are  evidence,  though  not  conclusive,  as  to  who  are 
the  stockholders.  Turnbull  v.  Payson,  95  U.  S.  418;  Vanderwerken 
v.  Glenn,  85  Va.  9;  Lehman  v.  Glenn,  87  Ala.  618. 

Registers  of  births,  marriages,  and  burials  are  evidence  to  prove 
pedigree.  Bogert  v.  King,  5  Cow.  237;  Miner  v.  Boneham,  15  Johns. 
226;  Maxwell  v.  Chapman,  8  Barb.  579;  Porter  v.  Ruckman,  6  Tr. 
App.  65  (engrossed  minutes  of  a  clerk)  ;  Svhile  v.  Brokhahus,  80 
N.  Y.  614  (signal  service  records)  ;  Matter  of  Silvernail,  45  Hun,  575 
(county  treasurer's  books)  ;  Supervisors  of  Monroe  v.  Clarke,  25  Hun, 
282   (county  treasurer's  books). 

The  report  or  certificate  of  an  officer  is  evidence  only  of  facts 
which,  by  law,  he  is  required  or  authorized  to  certify.  Water  Com- 
missioners v.  Lansing,  45  N.  Y.  19;  Anderson  v.  James,  4  Rob.  35; 
affirmed  by  the  Court  of  Appeals.     See  6  Alb.  L.  J.  166. 

It  may  be  evidence  in  favor  of  the  officer  himself.  McKnight  v. 
Lewis,  5  Barb.  681;  Bissell  v.  Hamblin.  6  Duer,  512;  Glover  v.  Whit- 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  203 

tenhall,  2  Den.  G33  (sheriff's  return)  ;  Cornell  v.  Cook,  7  Cow.  310 
(a  constable's  indorsement  of  a  levy  on  his  execution). 

The  charter  of  the  city  of  New  York  may  be  read  from  a  volume 
printed  by  authority  of  the  common  council.  Howell  v.  Ruggles,  5 
X.  Y.  444. 

A  report  of  a  railway  company  to  the  board  of  railway  commis- 
sioners is  inadmissible  by  itself.  Bella  v.  A*.  Y.,  L.  cC-  W.  Ry.  Co.,  6 
X.  Y.  Supp.  552. 

Governor's  proclamation. —  The  State  register  is  admissible  in  evi- 
dence to  prove  the  Governor's  proclamation.  Lurton  v.  Gilliam,  1 
Scam.  577. 

Legislative  journal. —  Journal  entries  of  the  house  of  legislature 
are  admissible.  Miller  v.  Goodwin,  70  111.  659;  People  v.  Barnes,  35 
111.    121. 

Legislative  journals  of  Illinois  prove  themselves.  Grob  v.  Cush- 
ion, 45  111.  119. 

The  presentation  of  a  bill  may  be  shown  by  the  journal  of  the 
legislature.     People  v.  Hatch,  33  111.  9. 

Ordinances. —  Ordinances  may  be  read  in  evidence  from  the  original 
record.     Grob  v.  Cushman,  45  111.  119. 

In  order  to  render  city  ordinances  admissible  the  authority  to 
pass  them  must  be  shown.  Bethalto  v.  Conley,  9  Brad.  339;  Alton 
v.  Hartford  Fire  Ins.  Co.,  72  111.  328:  Byars  v.  Mt.  Vernon,  77  111. 
467;  Schott  v.  People,  89  111.  195;  L.,  N.  A.  &  C.  R.  R.  Co.  v.  Shires, 
10S  111.  617. 

Published  laws. —  Published  laws,  certified  by  the  Secretary  of 
State,  are  admissible.  Illinois  Cent.  R.  R.  Co.  v.  Wren,  43  111.  77; 
Bcdard  v.  Hall,  44  111.  91. 

The  printed  statute  books  of  other  States,  issued  under  authority 
of  the  State,  are  admissible.  Hurd's  Rev.  Stat.,  chap.  51,  sec.  10, 
p.  860;  Heuthorn  v.  Doe,  1  Blackf.  157. 

Law  reports. —  Law  reports  may  be  read  in  evidence.  Hurd's  Rev. 
Stat.,  chap.  51,  sec.  12,  p.  860. 

Official  reports  and  accounts. —  The  reports  and  accounts  of  officers 
are  often  admissible.  Ohning  v.  City,  66  Ind.  59;  State  v.  Grammer, 
29  Ind.  530;  State  v.  Prather,  44  Ind.  287:  Osborne  v.  State  ex  rel., 
128  Ind.  129;  Goodwine  v.  State,  81  Ind.  109;  Hunt  v.  State,  93  Ind. 
311:   City  v.  Dykeman,  116  Ind.  15. 

Assessment  lists. —  A  copy  of  a  tax  duplicate  is  admissible.  Stand- 
ard Co.  v.  Bretz,  98  Ind.  231. 


204  A  DIGEST  OF  [Part  I. 

Assessment  lists  are  not  competent  to  prove  value.  McAfee  v. 
Montgomery,  21  Ind.  App.  196;  Railroad  Co.  v.  McDougal,  108  Ind. 
179. 

Adjutant-general's  records. —  Certified  copies  of  the  adjutant-gen- 
eral's records  are  admissible.     Board  v.  May,  G7  Ind:  562. 

Statutes  of  other  States. —  The  printed  statutes  of  other  States, 
published  by  authority,  are  admissible.  Crake  v.  Crake,  18  Ind. 
156;  Comparet  v.  Jernegan,  5  Blackf.  375;  Paine  v.  Railroad  Co.,  31 
Ind.  283;  Rothrock  v.  Perkinson,  61  Ind.  39;  Vaughn  v.  Griffith,  16 
Ind.  353.  But  not  unless  printed  under  authority.  Magee  v.  Saun- 
derson,  10  Ind.  261. 

Ordinance. —  The  fire  limits  of  a  city  may  be  proved  by  an  ordi- 
nance.    Miller  v.  Valparaiso,  10  Ind.  App.  22. 

Land  records. —  Land  records  may  be  admitted  without  the  ori<r- 
inal  instruments  being  accounted  for.  Bowers  v.  Van  Winkle,  41 
Ind.  432;  Burns  v.  Harris,  66  Ind.  536;  Winship  v.  Clendenning,  24 
Ind.  439. 

In  order  to  render  a  record  admissible  the  paper  must  be  one 
properly  recorded.     Westerman  v.  Foster,  57  Ind.  408. 

As  to  verification  under  3040,  Burns,  1901,  see  TSlaanes  v.  State,  143 
Ind.  299. 

A  lis  pendens  record  is  admissible.  Ellison  v.  Braustrator,  153 
Ind.  416. 

An  indorsement  by  a  county  recorder  on  an  instrument  filed  for 
record  is  admissible.     Moore  v.  Glover,  115  Ind.  367. 

The  tract-book  of  a  county  recorder's  office  is  admissible.  Keesling 
v.  Truitt,  30  Ind.  306. 

Official  returns. —  The  acts  of  an  officer  may  be  shown  by  his  re- 
turn.    Thurston  v.  Barnes,  10  Ind.  289. 

The  return  of  an  officer  is  conclusive  as  against  his  surety.  Bagot 
v.  State,  33  Ind.  262. 

The  conclusiveness  of  an  officer's  return  applies  only  to  acts  which 
he  is  required  to  perform.     Lindley  v.  Kelley,  42  Ind.  294. 

The  return  of  an  officer  is  admissible  in  his  own  favor.  Splahn 
v.  Gillespie,  48  Ind.  397. 

In  a  suit  for  false  return,  the  return  may  be  contradicted.  Stock- 
ton v.  Stockton,  59  Ind.  574. 

Survey. —  Federal  surveys  of  public  lands  are  admissible.  Doe  v. 
Hildreth,  2  Ind.  274. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  205 

Docket. —  A  justice  docket  is  admissible.  Redelsheimer  v.  Miller, 
107  Ind.  485;  Miller  v.  State,  61  Ind.  503. 

Record  of  city  council. —  City  of  Huntington  v.  Mendenhall,  73  Ind. 
460,  464;  City  of  Lafayette  v.  Weaver,  92  Ind.  477,  479. 

Transcript. —  Justice  transcripts  are  admissible.  Fisher  v.  Hamil- 
ton, 49  Ind.  341. 

A  justice  transcript  of  another  State  is  admissible.  Ault  v.  Ze- 
tiering,  38  Ind.  429;  Dragoo  v.  Graham,  9  Ind.  212,  17  Ind.  427. 

Authentication  of  records. —  Original  records  must  be  properly 
authenticated.     Bridges  v.  Branan,  133  Ind.  488. 

United  States  weather  reports,  see  People  v.  Dow,  64  Mich.  717. 

Marriage  certificate. —  People  v.  Innes,  110  Mich.  250;  People  v. 
Loomis,  106  Mich.  250;  People  v.  Isham,  109  Mich.  72. 

New  Jersey. 

Books  of  a  corporation. —  The  books  of  the  corporation  are  the  only 
evidence  of  who  are  the  stockholders  and  entitled  to  vote.  In  re 
St.  Laivrence  Steamboat  Co.,  \-\  N.  J.  L.  529. 

The  books  of  a  corporation  are  not  admissible  to  establish  a  right 
in  its  favor  against  third  persons.  N.  Riv.  Meadow  Co.  v.  Church,  22 
N.  J.  L.  424;  Wetherbee  v.  Baker,  35  N.  J.  Eq.  501. 

The  books  of  a  corporation  are  admissible  to  prove  the  proceedings 
of  the  corporation,  but  are  not  conclusive.  N.  Rio.  Meadow  Co.  v. 
Church,  2  Zab.  425;  Van  Hook  v.  Somerville  Co.,  5  N.  J.  Eq.  633, 
reversing  Id.  137:  Black  v.  Lamb,  12  N.  J.  Eq.  109,  S.  C,  13  N.  J.  Eq. 
456. 

A  certified  copy  of  a  report  as  to  the  financial  condition  of  a  cor- 
poration not  admissible.     Whitaker  v.  Miller,  63  N.  J.  L.  587. 

Stock-books  as  evidence. — G.  S.  1895,  "Corporations,"  36. 

Minutes  of  public  meetings. — Minutes  kept  by  school  trustees  are 
admissible  even  though  no  law  requires  them  to  be  kept.  Gilbert  v. 
Van  Winkle,  25  N.  J.  L.  73. 

Book  of  minutes  of  a  township  meeting  is  admissible.  Reeves  v. 
Ferguson,  31  N.  J.  L.  107. 

Parish  register. —  The  register  of  a  parish  of  the  Catholic  Church 
kept  according  to  church  rules  is  admissible.  Hancock  v.  Catholic 
Benev.  Legion,  67  N.  J.  L.  614. 

Records  of  boards  of  health  as  to  deaths,  marriages,  and  births.— 
G.  S.  1895,  "  Evidence,"  60-62 ;  *  Marriages,  Births,  and  Deaths,"  23. 


206  A  DIGEST  OF  [Part  I. 

Family  records. — A  Bible  is  not  admissible  to  prove  a  person's  age 
until  it  is  shown  to  contain  an  authentic  family  record.  Golden 
Star  Fraternity  v.  Conklin,  60  N.  J.  L.  565. 

Instances.—  Recitals  in  a  deed  issued  by  virtue  of  a  sale  under 
statute  made  prima  facie  evidence  of  the  proceedings  under  which 
it  was  issued.     Woodbridge  v.  Allen,  43  N.  J.  L.  262. 

A  sheriff's  inventory  made  at  the  time  of  a  levy  on  property  is 
admissible.     Brewster  v.  Vail,  20  X.  J.  L.  56. 

If  the  statute  of  another  State  provides  that  a  transcript  of  the 
record  of  a  mortgage  shall  be  admissible  there,  it  will  also  be  ad- 
missible in  New  Jersey.     Chase  v.  Caryl,  57  X.  J.  L.  545. 

A  book  of  registry  is  not  competent  to  prove  the  existence  or 
contents  of  a  mortgage.     Harlcer  v.  Gustin,   12  X.  J.  L.  42. 

A  government  gazette  is  not  admissible  to  prove  a  fact  of  a  private 
nature.    Brundred  v.  Del  Hoyo,  20  X.  J.  L.  328. 

Book  of  assessments  of  drainage  commissioners  is  admissible.  X. 
Riv.  Meadow  Co.  v.  Shrewsbury  Church,  2  Zab.  424. 

A  clergyman's  certificate  of  baptism  is  not  admissible  to  prove 
date  of  birth.     State  v.  Snover,  63  X.  J.  L.  383. 

Foreign  records. — Public  records  of  foreign  States,  and  copies 
thereof.     G.  S.   1895,  "Evidence,"  58. 

Notary's  certificate. —  Certificate  of  notary  made  conclusive  evi- 
dence.    G.  S.  1895,  "  Evidence,"  20,  69. 

Maryland. 

Death  register. —  The  death  records  of  the  registrar  of  vital  statis- 
tics are  not  admissible  to  prove  that  a  person  died  of  a  certain 
disease.     Life  Ins.  Co.  v.  Anderson,  79  Md.  375. 

Register  of  baptisms. — A  baptismal  register  is  admissible  to  prove 
the  date  of  a  baptism  if  regularly  kept  by  a  clergyman  as  a  part 
of  his  ecclesiastical  duty  and  produced  from  the  proper  custody. 
^Yearcr  v.  Leiman,  52  Md.  708. 

Entries  in  books  of  a  corporation. —  Hammond  v.  Strauss,  53  Md. 
1;  Weber  v.  Ficlcey,  47  Md.  196;  Morrison  v.  Dorsey,  48  Md.  461. 

Admissible  as  between  the  members;  not  as  against  others.  Hager 
v.  Cleveland,  36  Md.  476. 

Admissible  as  against  a  subscriber  for  stock.  Frank  v.  Morrison, 
58  Md.  423. 

Books  of  a  corporation  are  not  admissible  against  a  creditor 
thereof.     Roger  v.  Cleveland,  36  Md.  476. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  207 

The  books  of  a  corporation  are  not  admissible  in  its  favor  as 
against  third  persons.     Brown  v.  State,  64  Md.  199. 

Minutes  of  a  board. —  The  minutes  of  a  board  of  county  commis- 
sioners are  admissible  but  may  be  contradicted.  Milburn  v.  State, 
55  Md.  11. 

Notarial  register. —  Contemporaneous  entries  of  a  notary  in  the 
usual  course  of  his  business,  verified  by  the  notary,  are  admissible. 
Sasscer  v.  Bank,  4  Md.  409. 

Marks  on  the  ground  by  surveyors. —  The  fact  that  officers  of  the 
U.  S.  Geological  Survey  have  placed  certain  marks  indicating  dis- 
tances above  sea  level  is  not  admissible  to  prove  such  distances. 
~New  York,  etc.,  R.  Co.  v.  Jones,  94  Md.  24. 

Pennsylvania. 

Instances. —  The  minutes  of  a  public  board  of  commissioners  are 
admissible  to  prove  what  they  transacted.  Dougherty  v.  Piper,  3 
Yeates,  290;  Galbraith  v.  McGaio,  Add.  305;  Deal  v.  McCormick,  3 
S.  &  R.  343;  White  v.  Kyle,  6  S.  &  R.  107;  Hoover  v.  Gonzalus,  11 
S.  &  R.  314;  Rose  v.  Klinger,  8  W.  &  S.   178. 

Tax-books  in  a  commissioner's  olhce  are  official  documents  and  are 
admissible  to  prove  facts  stated  therein.  Fager  v.  Campbell,  5  Watts, 
287;  Overseers  v.  Overseers,  2  W.  &  S.  65;  Yankirk  v.  Clark,  16 
S.  &  R.  286;  Cuttle  v.  Brockway,  24  Pa.  145;  Scranton  Dist.  v. 
Directors,  106  Pa.  446. 

The  original  books  of  the  county  commissioners'  office  are  admissi- 
ble. Miller  v.  Hale,  26  Pa.  432.  The  clerk  who  made  the  entries 
need  not  be  called.     Cuttle  v.  Brockicay,  24  Pa.  145. 

Minutes  of  the  board  of  surveys  of  Philadelphia.  Wain  v.  Phila- 
delphia, 99  Pa.   330. 

Records  of  the  land  office  to  prove  a  survey.  X orris  v.  Hamilton, 
7  Watts,  91. 

Papers  in  the  office  of  a  deputy  surveyor  made  in  performance  of 
his  official  duty.     Lindsay  v.  Scroggs,  2  Rawle,   141. 

Records  of  the  land  office  are  admissible  to  show  the  custom  of 
the  office  and  that  a  warrant  was  not  issued  in  accordance  there- 
with. Blackburn  v.  Holliday,  12  S.  &  R.  140;  Goddard  v.  Gloninger, 
5   Watts,  209. 

The  entry  of  an  appointment  in  the  register  of  Ihe  Secretary  of 
State  is  admissible.     Moore  v.  Houston,  3  S.  &  R.  169. 


208  A  DIGEST  OF  [Part  I. 

Legislative  journals  are  admissible  to  identify  a  bill  which  has 
been  repealed.     Bank  v.  Com.,  26  Pa.  446. 

A  book  of  original  entries  may  be  admissible  even  though  the  one 
making  the  entries  did  not  have  personal  knowledge  regarding  them. 
Imhoff  v.  Flewrer,  2  Phila.  35. 

Notarial  records  and  certificates  evidence  of  the  facts. —  Pepper 
&  Lewis'  Digest  of  Laws,  "  Evidence,"  sees.  44,  48,  50. 

The  registry  of  a  deed  in  the  office  of  a  prothonotary  is  admis- 
sible.    Stonebreaker  v.  Short,  8  Pa.   155. 

Certificate  of  a  prothonotary  indorsed  on  a  deed  is  evidence  of 
acknowledgment.     Dikeman  v.  Parrish,  6  Pa.  210. 

Official  and  authorized  records. —  The  document  must  be  shown  to 
be  official  or  it  will  not  be  admitted.     Bank  v.  Donaldson,  6  Pa.  179. 

Records  not  authorized  by  law  are  not  admissible.  Filler  v.  Shot- 
well,  7  W.  &  S.   14. 

Registers  of  deaths,  baptisms,  etc. —  Registry  of  births  and  deaths 
kept  by  a  religious  society  are  admissible  when  authenticated. 
Stoever  v.  Whitman,  6  Binn.  416;  II  yam  v.  Edwards,  1  Dall.  2. 

Register  of  marriages,  baptisms,  and  burials  of  a  parish  is  admis- 
sible to  prove  pedigree.     Kingston  v.  Lesley,  10  S.  &  R.  383. 

Register  of  baptisms  not  admissible  to  prove  age.  Clark  v.  Trin- 
ity Church,  5  W.  &  S.  266. 

Health  officers'  records  of  marriages,  births,  and  deaths. —  Pepper 
&  Lewis'  Digest  of  Laws,  "Evidence,"  sec.  49;  "Registration  of 
Marriages,  Births,  and  Deaths,"  sees.  6,  17,  28. 

Registers  of  burials  out  of  the  United  States. —  Pepper  &  Lewis' 
Digest  of  Laws,  "  Evidence,"  sees.  45,  46. 

Corporation  books. —  Books  of  a  corporation  are  admissible  against 
the  members  of  the  corporation.  Graff  v.  Pitts.  &  S.  R.  Co.,  31 
Pa.  489;  Bavington  v.  Pitts,  d  S.  R.  Co.,  34  Pa.  358;  Bedford  R.  Co. 
v.  Bowser,  48  Pa.  29;  Diehl  v.  Mut.  Ins.  Co.,  58  Pa.  443. 

A  corporation's  books  are  not  admissible  in  its  favor  and  against 
third  persons.     Fleming  v.  "Wallace,  2  Yeates,  120. 

Registers  kept  by  religious  societies  made  evidence. —  Pepper  & 
Lewis'  Digest  of  Laws,  "  Evidence,"  sees.  43,  47. 


CHAP.  IV.]  THE  LAW  OF  EVIDENCE.  209 


Article  35. 

relevancy  of  statements  in  works  of  history,  maps, 
charts,  and  flans. 

Statements  as  to  matters  of  general  public  history  made 
in  accredited  historical  books  are  deemed  to  be  relevant 

when  the  occurrence  of  any  such  matter  is  in  issue  or  is 
or  is  deemed  to  be  relevant  to  the  issue ;  but  statements  in 
such  works  as  to  private  rights  or  customs  are  deemed  to 
be  irrelevant.97 

[Submitted']  Statements  of  facts  in  issue  or  relevant  or 
deemed  to  be  relevant  to  the  issue  made  in  published  maps 
or  charts  generally  offered  for  public  sale  as  to  matters  of 
public  notoriety,  such  as  the  relative  position  of  towns  and 
countries,  and  such  as  are  usually  represented  or  stated  in 
such  maps  or  charts,  are  themselves  deemed  to  be  relevant 
facts  ;98  but  such  statements  are  irrelevant  if  they  relate  to 
matters  of  private  concern,  or  matters  not  likely  to  be 
accurately  stated  in  such  documents." 

97  See  cases  in  2  Ph.  Ev.  155-6,  and  Read  v.  Bishop  of  Lincoln, 
[1892],  A.  C.  644,  at  pp.  652-654. 

98  In  R.  v.  Orton,  maps  of  Australia  were  given  in  evidence  to  show 
the  situation  of  various  places  at  which  the  defendant  said  he  had 
lived.  In  R.  v.  Jameson,  Trial  at  Bar,  21  July,  1896,  standard  map9 
of  South  Africa  were  admitted  to  show  the  general  positions  of  the 
places  referred  to:  Phipson,  p.  354. 

99  E.  g.  a  line  in  a  tithe  commutation  map  purporting  to  denote  the 
boundaries  of  A's  property  is  irrelevant  in  a  question  between  A  and  B 
as  to  the  position  of  the  boundaries:  Brailstreet.  v.  Hearfield,  1877, 
5  Ch.  Div.  709,  and  see  Hammond  v.  Wilberforce  1854,  10  Ex.  390;  and 
R.  v.  Bergcr,  [1894],  1  Q.  B.  823.     See,  too,  Phipson,  pp.  333,  334. 

14 


210  A  DIGEST  OF  [Part  I. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  139  and 
497;  9  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  885  et  seq.; 
Abbott's  Trial  Evidence    (2d  ed.),  p.  883. 

As  to  first  paragraph  of  text,  see  Woods  v.  Banks,  14  N.  F..   101. 

Sustaining  text  so  far  as  works  by  authors,  long  deceased,  are 
concerned;  State  v.  Wagner,  6  Me.  178;  Morris  v.  Harmer,  7  Pet. 
554;  Spalding  v.  Hedges,  2  Pa.  St.  240,  243;  Charlotte  v.  Chouteau, 
30  Mo.    194. 

An  almanac  is  admissible.  State  v.  Morris,  47  Conn.  179;  Mun- 
shower  v.  State,  55  Md.  11. 

An  encyclopaedia  is  not  admissible  to  prove  recent  occurrences. 
Whiton  v.  Albany,  etc.,  Ins.  Co.,  109  Mass.  24. 

A  list  of  prices  current  may  be  admitted  if  proved  to  be  reliable. 
Whitney  v.  Thacher,  117  Mass.  523;  Cliquot's  Champagne,  3  Wall. 
114;   Seligman  v.  Rogers,  113  Mo.  642. 

Maps,  plans,  photographs,  etc. —  Com.  v.   King,   150  Mass.  221. 

Ancient  maps,  shown  to  be  genuine,  are  competent  evidence  to» 
prove  matters  relating  to  general  or  public  rights.  Lawrence  v. 
Tennant,  64  N.  H.  532;   Causland  v.  Fleming.  63   Pa.  36. 

Of  private  boundary.     Gibson  v.  Poor,  21  N.  H.  440. 

Private  surveys  are  not  admissible  without  proof  of  their  correct- 
ness. Whitehouse  v.  Beckford,  29  N.  H.  471;  Com.  v.  Switzer,  134 
Pa.  383;  Wilkinson  v.  State,  100  Ala.  23:  Rowland  v.  McCoivn.  20 
Ore.  538;   Burwell  v.  Sneed,  104  N.  C.   118. 

An  ancient  layout  of  a  highway  by  a  proprietors'  committee,  with 
evidence  that  it  was  recorded  in  the  proprietors'  book,  and  that  tl:.e 
land  thus  laid  out  has  ever  since  been  used  as  a  highway,  is  ad- 
missible to  prove  the  existence,  by  dedication,  of  the  highway,  and 
its  width.     State  v.  Merrit,  35  Conn.  315. 

A  survey  found  among  the  papers  of  a  deceased  surveyor,  but 
where  there  was  no  evidence  that  it  was  made  from  actual  survey, 
or  at  whose  procurement,  was  held  not  admissible  in  evidence.  Free 
v.  James,  27   Conn.  79. 

Ancient  maps,  shown  to  be  genuine,  are  competent  evidence  to 
establish  private  boundary.     Whitman  v.  Shaw,  166  Mass.  451. 


Chap.   J V.]  THE  LAW  OF  EVIDENCE.  211 

A  plan  or  picture  is  admissible  if  verified  by  proof.  Blair  v. 
Pelham,  118  Mass.  420;  Marcy  v.  Barnes,  16  Gray  (Mass.),  161; 
Bollenbeck  v.  Rowley,  8  Allen  (Mass.),  473.  Contra,  Bearce  v. 
Jackson,  4  Mass.  408. 

A  map  published  by  authority  of  the  Legislature  is  admissible  to 
prove  town  boundaries.     Com.  v.  King,  150  Mass.  221. 

The  judge  is  to  pass  upon  the  sufficiency  of  the  verification.  Blair 
v.  Pelham,  118  Mass.  420;  Walker  v.  Curtis,  116  Mass.  98.  See  also 
Com.  v.  Coe,  115  Mass.  481. 

The  admissibility  of  a  photograph  does  not  depend  upon  its 
verification  by  the  photographer,  provided  it  is  shown  to  be  accu- 
rate by  any  one  competent  to  speak  from  personal  observation.  The 
sufficiency  of  the  verification  is  a  preliminary  question  of  fact  for 
the  judge.     McGar  v.  Borough  of  Bristol,  71   Conn.  652. 

It  is  error  to  admit  a  photograph  without  verification.  Cunning- 
ham v.  F.  H.  &  W.  R.  R.  Co.,  72   Conn.  244. 

Photographic  views  of  the  scene  of  an  accident  are  admissible  as 
a  representation  of  the  place.  Any  difference  that  arises  from  the 
views  being  taken  at  a  different  season  of  the  year  can  be  explained. 
Dyson  v.  N.  Y.  d  N.  E.  R.  R.  Co.,  57  Conn.  24. 

Scientific  books. —  Scientific  books  are  net  admissible,  nor  may 
they  be  read  in  argument.  Com.  v.  Wilson,  1  Gray  (Mass.),  337; 
Washburn  v.  Cuddihy,  8  Gray  (Mass.),  430;  Ashworth  v.  Kittridge, 
12  Cush.  (Mass.)  193,  59  Am.  Dec.  178;  Com.  v.  Sturtivant,  117 
Mass.   122,  19  Am.  Rep.  401 ;   Com.  v.  Brown,  121  Mass.  69. 

The  reading  to  the  court  or  jury  of  books  recognized  by  experts 
as  authority  may  be  allowed  or  refused  in  the  exercise  of  judicial 
discretion.     Richmond' s  Appeal,  59  Conn.  244. 

Medical  books. —  Medical  books  are  not  competent  evidence.  Ash- 
worth v.  Kittridge,  12  Cush.  (Mass.)  193,  59  Am.  Dec.  178:  Com.  v. 
Sturtivant,  117  Mass.  122;  Com.  v.  Wilson,  1  Gray  (Mass.),  337; 
Fox  v.  Peninsular,  etc.,  Works,  84  Mich.  676;  Epps  v.  State,  102  Ind. 
539;  Gallagher  v.  Market  St.  R.  Co.,  67  Cal.  13:  Boyle  v.  State,  57 
Wis.  472,  46  Am.  Rep.  41;  Bales  v.  State,  63  Ala.  30;  Burg  v.  Chi- 
cago, etc.,  R.  Co.,  90  la.  106. 

In  some  States  standard  medical  works  on  insanity  may  be  read  to 
the  jury  by  the  counsel  for  the  accused,  upon  the  question  of  his  in- 
sanity.   State  v.  Hoyt,  46  Conn.  337. 


212  A  DIGEST  OF  [Part  I. 

This  rule  must  be  regarded  as  confined  exclusively  to  cases  where 
the  plea  of  insanity  is  interposed.  Richmond's  Appeal,  59  Conn. 
244. 

In  examining  a  medical  expert,  counsel  may  read  questions  from 
a  medical  book  for  the  purpose  of  making  himself  understood. 
Tompkins  v.  West,  56  Conn.  485.  Nor  may  they  be  read  to  the 
jury.  Washburn  v.  Cuddihy,  8  Gray  (Mass.).  430;  Boyle  v.  State, 
57  Wis.  472,  46  Am.  Rep.  41:  People  v.  Wheeler,  60  Cal.  581,  44 
Am.  Rep.   70. 

An  illustration  in  a  medical  book  is  not  admissible.  Ordioay  v. 
Haynes,  50  N.  H.  159. 

Law  books. —  The  court,  in  its  discretion,  may  allow  books  of 
statutes  to  be  read  to  the  jury.  Com.  v.  Hill,  145  Mass.  305.  See 
also  Com.  v.  Porter,  10  Mete.  (Mass.)  263;  State  v.  Fitzgerald,  130 
Mo.  407;  People  v.  Anderson,  44  Cal.  65;  Curtis  v.  State,  36  Ark. 
284;  Gregory  v.  Ohio  River  R.  Co.,  37  W.  Va.  606;  Blum  v.  Jones, 
86  Tex.  492;  Norfolk  &  Western  R.  Co.  v.  Harman's  Admr.,  83  Va. 
553  (matter  of  right).  But  the  reading  of  law  books  is  prohibited 
in  some  States.  Lendbury  v.  Iron  Mining  Co.,  75  Mich.  84;  Steff en- 
son  v.  Chicago,  etc.,  R.  Co..  48  Minn.  285;  Yarborough  v.  State,  105 
Ala.  45. 

It  has  been  held  that  a  reported  case  may  be  read  to  the  jury  in  a 
criminal  case.  State  v.  Hoyt,  46  Conn.  330:  Wohlford  v.  People,  148 
111.  296;  Johnson  v.  Culver,  116  Ind.  278;  Hudson  v.  Hudson,  90  Ga. 
582 :  State  v.  Whitmore,  53  Kan.  343. 

An  unofficial  compilation  of  the  laws  of  another  State  is  not  gen- 
erally admissible.    Bride  v.  Clark,  161  Mass.  130. 

A  printed  book,  purporting  to  be  a  copy  of  the  statutes  of  an- 
other State,  is  not  evidence  of  such  statutes.  Bosticick  v.  Bogardus, 
2  Root  (Conn.),  250. 

Histories. —  Onondaga  Nation  v.  Thatcher,  61  N.  Y.  Supp.  1027, 
29  Misc.  Rep.  428  :  judgment  affirmed  in  Onondaga  Nation  v.  Thatcher, 
(Sup.  1900),  65  X.  Y.  Supp.  1014  (concerning  Indian  relics)  :  Bo- 
gardus v.  Trinity  Church,  4  Sandf.  Ch.  633;  McKinnon  v.  Bliss,  21 
N.  Y.  206,  216;  Crill  v.  Rome,  47  How.  Pr.  400. 

A  local  history  is  not  admissible.  McKinnon  v.  Bliss,  21  N,  Y. 
206.  31  Barb.  180;  Roe  v.  Strang,  107  N.  Y.  350. 

Tide  tables. —  Tide  tables,  calculated  by  scientific  authors,  are 
competent  evidence.     Green  v.  Cornwell,  1  C.  H.  Rec.  11. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  213 

Life  tables. —  The  Northampton  tables  are  competent  evidence, 
upon  the  question  as  to  the  probable  duration  of  a  life.  Schell  v. 
Plumb,  55  N.  Y.  592,  46  How.  Pr.  11;  Sauter  v.  New  York  Central 
Railroad  Co.,  6  Hun,  446,  66  N.  Y.  50. 

Prices-current. —  Prices-current,  published  for  public  circulation,  in 
a  newspaper,  are  admissible.  Terry  v.  McNeil,  58  Barb.  241.  Com- 
pare Whelan  v.  Lynch,  60  N.  Y.  469,  affirming  65  Barb.  326. 

Architect's  schedule  of  charges. —  The  schedule  of  charges  o£  the 
American  Institute  of  Architects  is  admissible  to  show  the  customary 
and  proper  compensation.     Gilman  v.  Stevens,  54  How.  Pr.  197. 

Photographs. —  A  photograph  must  be  proved  in  order  to  be  ad- 
missible.    C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Monaghan,  140  111.  474. 

Photographs  of  an  injured  person,  duly  authenticated,  are  admis- 
sible.   People's  Gaslight  &  Coke  Co.  v.  Amphlett,  93  111.  App.  194. 

A  photographic  copy  of  a  forged  note  is  admissible  in  evidence. 
Duffin  v.  People,  107  111.  113. 

A  photograph  a  year  after  the  accident  is  not  admissible,  it  not 
being  shown  that  no  changes  had  occurred.  Iroquois  Furnace  Co.  v. 
McCrea,  191  111.  340,  61  N.  E.  79,  affirming  91  111.  App.  337. 

Photographs  of  the  place  of  an  injury,  duly  authenticated,  are 
admissible.     Wabash  Ry.  Co.  v.  Jenkins,  84  111.  App.  511. 

Photographs  of  the  scene  of  an  accident  are  admissible  where  no 
changes  have  taken  place.  C:  &■  E.  I.  R.  R.  Co.  v.  Lawrence,  96  111. 
App.  635;  Williams  v.  Carterville,  97  111.  App.  160. 

Stereoscopic  views  may  be  admissible  in  evidence.  Rockford  v. 
Russell,  9  Brad.  229. 

Abstract  of  title  admissible. — Seaman  v.  Bisbce,  163  111.  91.  Com- 
pare Walton  v.  Follansbee,  165  111.  4S0. 

Field  notes. —  Field  notes  are  not  admissible  without  authentica- 
tion.    Owens  v.  Crossett,  105  111.  354. 

Plat  admissible.—  Prouty  v.  Tilden,  164  111.  163. 

A  plat  of  land  duly  authenticated  is  admissible.  Wahl  v.  Lau- 
bersheimei;  174  111.  338,  51  N.  E.  860. 

A  town  plat  is  admissible  in  evidence.  Gould  v.  Howe,  131  111. 
490,  496. 

In  questions  of  dower,  life  tables  are  admissible.  McHenry  v. 
Yokum,  27  111.  160. 

Annuity  tables. —  In  accident  cases,  annuity  tables  are  not  ad- 
missible to  show  expectancy  of  life.  C,  B.  d-  Q.  R.  R.  Co.  v.  John- 
son, 36  111.  App.  564. 


214  A  DIGEST  OF  [Part  I. 

Meteorological  observations. —  Meteorological  observations  may  be 
admissible.     C.  &  A".  W.  Ry.  Co.  v.  Trayes,  17  111.  App.  136,  139. 

Price  lists. —  Price  lists  are  not  admissible  upon  questions  of  value. 
Cook  County  v.  Harmes,  10  Brad.  24. 

Law  books. —  It  has  been  held  that  a  reported  case  may  be  read 
to  the  jury  in  a  criminal  case.     Wohlford  v.  People,  148  111.  296. 

Stenographer's  notes. —  A  stenographer  having  testified  as  to  the 
correctness  of  his  notes  may  then  read  them.  Higgins  v.  State,  157 
Ind.  57;  Keith  v.  State,  157  Ind.  37G. 

The  stenographer's  report  may  be  made  a  part  of  the  record  by 
a  bill  of  exceptions.  Brehm  v.  State,  90  Ind.  140;  Butler  v.  Roberts, 
118  Ind.  481;  Calvin  v.  State,  56  Ind.  51;  Lee  v.  State,  88  Ind.  256; 
Marshall  v.  State,  107  Ind.  173;  Merrick  v.  State,  63  Ind.  327;  Rail- 
way Co.  v.  Voight,  122  Ind.  288;  Wagoner  v.  Wilson,  108  Ind.  210; 
Woolen  v.  Wishmier,  70  Ind.  108. 

Medical  and  scientific  books  not  admissible. —  Epps  v.  State,  102 
Ind.  539. 

Reading  from  books  and  newspapers. —  Counsel  should  not  in  gen- 
eral be  allowed  to  read  extracts  from  other  books  or  from  news- 
papers.   Baldwin  v.  Bricker,  S6  Ind.  221. 

Statutes. —  The  Detroit  city  ordinances  stand  upon  the  same 
footing  with  reference  to  proof  as  the  statutes.  Napinan  v.  People, 
19  Mich.  352. 

Statutes  of  other  States.— Wilt  v.  Cutler,  38  Mich.  189;  People 
v.  Colder,  30  Mich.  85;  Kopke  v.  People,  43  Mich.  41.  See  Ellis  v. 
Maxson,  19  Mich.  186;  People  v.  Lambert,  5  Mich.  349;  Kermot  v. 
Ayer,  11  Mich.  181. 

New  Jersey. 

Official  maps. —  Sharp's  Book  of  Surveys  is  admissible  in  matters 
concerning  titles  under  the  ^'est  Jersey  proprietors.  Den.  v.  Pond, 
C.'oxe,  379. 

Mortuary  tables. —  To  show  probable  duration  of  human  life,  a 
standard  mortuary  table  is  admissible.  Camden  &  Atl.  R.  Co.  v. 
Williams,  Ul  X.  J.  L.  646. 

Books  of  science. —  Books  of  science  not  admissible,  but  when  a 
witness  quotes  them  as  the  basis  of  his  opinion  they  may  be  ad- 
mitted to  contradict  him.  New  Jersey  Zinc  Co.  v.  Lehigh  Zinc  Co., 
59  X.  J.  L.  189. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  215 

Printed  copies  of  by-laws. —  A  printed  copy  of  a  by-law  of  a  board 
of  freeholders  is  not  admissible.  Downie  v.  Freeholders,  54  N.  J.  L. 
223. 

Printed  laws  of  this  State.— G.  S.  1895,  "Statutes,"  38. 

Printed  statutes  and  decisions  of  other  States.—  G.  S.  1895, 
"'Evidence,"  22,  23,  05. 

Maryland. 

Maps. —  A  map  is  not  admissible  to  prove  boundary  when  it  was 
not  made  by  public  authority  or  proved  to  be  correct.  Tome  Insti- 
tute v.  Davis,  87  Md.  591. 

Medical  books. —  Treatise  on  medical  jurisprudence  not  admissible 
to  support  or  contradict  an  expert.     Davis  v.  State,  3S  Md.  15. 

Law  books. —  Printed  statutes  of  other  States  may  be  read  in  evi- 
dence to  prove  such  statutes.     Ilarryman  v.  Roberts,  52  Md.  G4. 

Printed  laws. —  Printed  books  to  prove  statutes  and  resolutions. 
P.  G.  L.  1888,  art.  35,  sees.  47-49. 

Almanac. —  An  almanac  is  admissible.  Munshower  v.  State,  55 
Md.  11. 

System  of  measurement. —  A  brick  mason  may  testify  as  to  the 
number  of  brick  in  a  building  from  calculations  based  upon  a  system 
of  measurement  adopted  in  Baltimore  by  the  trade  and  found  to  be 
correct.     Donohue  v.  Shedrick,  46  Md.  226. 

Pennsylvania. 

Maps. — Ancient  maps  are  evidence  of  boundary.  Com.  v.  Philadel- 
phia, 16  Pa.  79;  Huffman  v.  McCrea,  56  Pa.  95. 

Ancient  maps,  shown  to  be  genuine,  are  competent  evidence  to 
prove  matters  relating  to  general  or  public  rights.  Causland  v. 
Fleming,  63  Pa.  36. 

Certified  copies  of  Holmes's  Map  of  Philadelphia,  published  in 
1683  and  on  file  in  the  office  of  the  Surveyor-General,  are  admissible. 
Vom.  v.  Alburger,  1  Whart.  469;  Baird  v.  Rice,  63  Pa.  489.  See 
Farr  v.  Swan,  2  Pa.  245 ;  Philadelphia  v.  Crump,  1  Brewst.  320. 

A  copy  of  an  official  map  is  not  admissible  without  accounting 
for  the  absence  of  the  original.     Com.  v.  Sicitzer,  134  Pa.  383. 

Surveys. —  Official  surveys  admitted  in  evidence.  Fothcrgill  v. 
Stover,  1  Dall.  6;  Leazare  v.  Hillegas,  7  S.  &  R.  313;  Shields  v. 
Buchanan,  2  Yeates,  219;  Harris  v.  Monks,  2  S.  &  R.  557;  Reynolds 
v.  Dougherty,  3  S.  &  R.  325;  Philips  v.  Shaffer,  5  S.  &  R.  215;  Creek 


210  A  DIGEST  OF  [Part  I. 

v.  Moon,  7  S.  &  R.  330;  Funston  v.  McMahon,  2  Yeates,  245;  Clem- 
mins  v.   Gottshall,  4  Yeates,  330. 

An  official  survey  is  admissible  to  prove  boundary  without  pro- 
ducing the  warrant  in  pursuance  of  which  it  was  made.  Miller  v. 
Keene,  5  Watts,  348.  But  there  must  be  some  proof  that  it  is 
official.  Yickroy  v.  Skelley,  14  S.  &  R.  372;  Blackburn  v.  Holliday, 
12  S.  &  R.  140;  Wilson  v.  Stoner,  9  S.  &  R.  39. 

An  official  survey  is  admissible  to  prove  the  location  of  land. 
Canal  Co.  v.  Dunkel,   101  Pa.   103. 

Memorandum  in  the  warrant-book  of  a  deceased  deputy  surveyor 
as  to  a  warrant  is  admissible.     Ross  v.  Rhoads,  15  Pa.  103. 

A  draft  of  adjoining  lands,  certified  by  the  Surveyor-General  is 
admissible  to  prove  location  and  boundary.  Payne  v.  Craft,  7 
W.  &  S.  458;  Sweigart  v.  Richards,  8  Pa.  430;  Gratz  v.  Beates,  45 
Pa.   495. 

Field  notes  and  plats  of  a  deputy  surveyor  are  admissible.  Boyles 
v.  Johnston,  6  Binn.  125;  Hoover  v.  Gonzalus,  11  S.  &  R.  314;  Mc- 
Cormick  v.  McMurtrie,  4  Watts,  192. 

Unofficial  surveys  are  not  admissible.  Hubley  v.  White,  2  Yeates, 
133 ;  Hubley  v.  Vanhorne,  7  S.  &  R.  185 ;  McKenzie  v.  Crow,  4  Yeates. 
428;  Farley  v.  Lenox,  8  S.  &  R.  392. 

A  survey  is  unofficial,  though  made  by  a  deputy  surveyor,  if  it 
was  outside  his  official  duty.     Salmon  v.  Ranee,  3  S.  &  R.  311. 

Private  surveys  are  not  admissible  without  proof  of  their  correct- 
ness.    Com.  v.  Switzer,  134  Pa.  383. 

Life  tables. —  Carlisle  tables  are  admissible  to  prove  probable  du- 
ration of  life  but  are  not  conclusive.     Shippen's  Appeal,  80  Pa.  391. 

Carlisle  tables  admissible  on  question  of  probable  duration  of 
life,  but  the  jury's  attention  should  be  directed  to  all  the  special  cir- 
cumstances.    Scifred  v.  Railroad  Co.,  200  Pa.  399. 

Mortality  tables  are  not  admissible  to  show  expectancy  of  life  in 
the  absence  of  proof  of  the  basis  of  the  table  and  from  what  material 
it  was  made.  McKenna  v.  Gas  Co.,  198  Pa.  31;  Kerrigan  v.  Railroad 
Co.,   194  Pa.   98. 

Law  books. —  The  authenticated  reports  of  the  highest  court  of 
Virginia  received  to  rebut  the  presumption  that  Virginia  law  is  the 
same  as  that  of  Pennsylvania.     Musscr  v.  >Stauffcr,  192  Pa.  398. 

Printed  copies. —  Printed  copies  of  Philadelphia  ordinances  as  evi- 
dence.    Pepper  &  Lewis'  Digest  of  Laws,  "  Evidence,"  sec.  37. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  217 

History. —  Works  of  history  admissible  to  prove  remote  transac- 
tions.    Com.  v.  Alburger,  1  Whart.  469. 

Sustaining  text  so  far  as  works  by  authors,  long  deceased,  are 
concerned.     Spalding  v.  Hedges,  2  Pa.  240,  243. 

The  articles  of  agreement  between  Penn  and  Baltimore  as  to  State 
boundary  are  admissible.     Ross  v.   Cutshall,  1   Binn.   399. 

The  "  list  of  first  purchasers "  is  admissible  in  Pennsylvania. 
Hurst  v.  Dippo,  1  Dall.  20;  Morris  v.  Vanderen,  1  Dall.  64.  So  also 
is  a  certified  copy.     Kingston  v.  Lesley,  10  S.  &  R.  383. 

The  journal  of  the  U.  S.  House  of  Representatives  with  a  letter 
of  the  Secretary  of  War  and  a  report  of  an  engineer  received  in 
evidence  to  prove  a  fact.     Miles  v.  Stevens,  3  Pa.  21. 

Article  36. 
entries  in  bankers'  books. 

A  copy  of  any  entry  in  a  banker's  book  must  in  all  legal 
proceedings  be  received  as  prima  facie  evidence  of  such 
entry,  and  of  the  matters,  transactions,  and  accounts  therein 
recorded  [even  in  favour  of  a  party  to  a  cause  producing  a 
copy  of  an  entry  in  the  book  of  his  own  bank]  .* 

Such  copies  may  be  given  in  evidence  only  on  the  con- 
dition stated  in  Article  71  (/). 

The  expression  "  Bankers'  books  "  includes  ledgers,  day- 
books, cash-books,  account-books,  and  all  other  books  used 
in  the  ordinary  business  of  the  bank.2 

The  word  "  Bank  "  is  restricted  to  banks  which  have  duly 
made  a  return  to  the  Commissioners  of  Inland  Revenue, 

i  Harding  v.  Williams,  1880,  14  Ch.  Div.  197. 

2  And  applies  apparently  to  the  books  of  bankers  in  all  parts  of  the 
United  Kingdom:  Kissam  v.  Link,  post. 


218  A  DIGEST  OF  [Part  I. 


Savings  banks  certified  under  the  Act  relating  to  savings 
banks, 

Post-office  savings  banks,  and 

any  company  carrying  on  the  business  of  bankers  to 
which  the  Companies  Acts,  1862  to  1880,  are  applicable, 
which  has  furnished  to  the  registrar  of  joint-stock  com- 
panies a  list  and  summary,  as  required  by  the  second  part 
of  the  Companies  Act,  1862,  with  the  addition  of  a  state- 
ment of  the  names  of  the  several  places  where  it  carries 
on  business.3 

The  fact  that  any  bank  has  duly  made  a  return  to  the 
Commissioners  of  Inland  Revenue  may  be  proved  in  any 
legal  proceeding  by  the  production  of  a  copy  of  its  return 
verified  by  the  affidavit  of  a  partner  or  officer  of  the  bank, 
or  by  the  production  of  a  copy  of  a  newspaper  purporting  to 
contain  a  copy  of  such  return  published  by  the  Commission- 
ers of  Inland  Revenue. 

The  fact  that  a  company  carrying  on  the  business  of 
bankers  has  duly  furnished  a  list  and  summary  [semble with 
the  addition  specified]  may  be  proved  by  the  certificate  of 
the  registrar  or  any  assistant  registrar.4 

The  fact  that  any  such  savings  bank  is  certified  under  the 
Act  relating  to  savings  banks  may  be  proved  by  an  office  or 
examined  copy  of  its  certificate.  The  fact  that  any  such 
bank  is  a  post-office  savings  bank  may  be  proved  by  a 
certificate  purporting  to  be  under  the  hand  of  Her  Majesty's 
Postmaster-General  or  one  of  the  secretaries  of  the  Post 
Office.5 

3  45  &  46  Vict.  c.  72,  a.  11.  4  45  &  46  Vict.  c.  72,  s.  11. 

3  42  &  43  Vict.  c.  11. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  219 

Article  37. 

bankers  not  compellable  to  produce  their  books. 

A  bank  or  officer  of  a  bank  is  not  in  any  legal  proceeding 
to  which  the  bank  is  not  a  party  compellable  to  produce 
any  banker's  book,  or  to  appear  as  a  witness  to  prove  the 
matters,  transactions,  and  accounts  therein  recorded  unless 
by  order  of  a  Judge  of  the  High  Court  made  for  special 
cause  [or  by  a  County  Court  Judge  in  respect  of  actions 
in  his  own  court].6 

Article  38. 

judge's  powers  as  to  banker's  books. 

On  the  application  of  any  party  to  a  legal  proceeding  a 
Court  or  Judge  [including  a  County  Court  Judge  acting  in 
respect  to  an  action  in  his  own  court]  may  order  that  such 
party  be  at  liberty  to  inspect  and  take  copies  of  any  entries 
in  a  banker's  book  for  any  of  the  purposes  of  such  pro- 
ceedings. Such  order  may  be  made  either  with  or  without 
summoning  the  bank,  or  any  other  party,  and  must  be  served 
on  the  bank  three  clear  days  [exclusive  of  Sundays  and 
Bank  holidays]  before  it  is  to  be  obeyed,  unless  the  Court 
otherwise  directs.7 

6  42  &  43  Vict.  c.  11,  ss.  7,  10. 

7  42  &  43  Vict.  c.  11,  s.  7.  See  Davies  v.  White,  1884,  53  L.  J.,  Q.  B. 
275;  In  re  Marshfield,  Marshfield  v.  Hutchings,  1886,  32  Ch.  D.  499; 
Arnott  v.  Hayes,  1887,  36  Ch.  D.  731.  The  order  may  be  made  in  re- 
spect of  books  in  any  part  of  the  United  Kingdom;  Kissam  v.  Link, 
[1896],  1  Q.  B.  574.     See  post,  Article  71   (6). 


220  A  DIGEST  OF  [Pabt  I. 


Article  39.* 
"  judgment." 

The  word  "  judgment  "  in  Articles  40-47  means  any 
final  judgment,  order  or  decree  of  any  Court. 

The  provisions  of  Articles  40-45  inclusive,  are  all  subject 
to  the  provisions  of  Article  46. 

Article  40. 
all  judgments  conclusive  proof  of  their  legal 

EFFECT. 

All  judgments  whatever  are  conclusive  proof  as  against 

all  persons  of  the  existence  of  that  state  of  things  which 

they  actually  effect  when  the  existence  of  the  state  of 

things  so  effected  is  a  fact  in  issue  or  is  or  is  deemed  to  be 

relevant   to   the    issue.     The   existence   of   the   judgment 

effecting  it  may  be  proved  in  the  manner  prescribed  in 

Part  II. 

Illustrations. 

(a)  The  question  is,  whether  A  has  been  damaged  by  the  negligence 
of  his  servant  B  in  injuring  C's  horse. 

A  judgment  in  an  action,  in  which  C  recovered  damages  against  A, 
is  conclusive  proof  as  against  B,  that  C  did  recover  damages  against 
A  in  that  action.8 

(b)  The  question  is,  whether  A,  a  shipowner,  is  entitled  to  recover 
as  for  a  loss  by  capture  against  B,  an  underwriter. 

*  See  Note  XXIII. 
8  Green  v.  New  River  Company,  1792,  4  T.  R.  589.     (See  Article  44, 
Illustration  (a).) 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  221 

A  judgment  of  a  competent  French  prize  court  condemning  the  ship 
and  cargo  as  prize,  is  conclusive  proof  that  the  ship  and  cargo  were 
lost  to  A  by  capture.^ 

(c)  The  question  is,  whether  A  can  recover  damages  from  B  for  a 
malicious  prosecution. 

The  judgment  of  a  Court  by  which  A  was  acquitted  is  conclusive 
proof  that  A  was  acquitted  by  that  Court.io 

(d)  A,  as  executor  to  B,  sues  C  for  a  debt  due  from  C  to  B. 

The  grant  of  probate  to  A  is  conclusive  proof  as  against  C,  that  A 
is  B's  executor.  11 

(e)  A  is  deprived  of  his  living  by  the  sentence  of  an  ecclesiastical 
court. 

The  sentence  is  conclusive  proof  of  the  act  of  deprivation  in  all 
cases. 12 

(f)  A  and  B  are  divorced  a  vinculo  matrimonii  by  a  sentence  of  the 
Divorce  Court. 

The  sentence  is  conclusive  proof  of  the  divorce  in  all  cases.13 


AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  527,  538, 
539;  Underhill  on  Evidence,  sec.  157;  Spencer  v.  Dearth,  43  Vt.  98, 
105;  Harrington  v.  Wadsioorth,  63  N.  H.  400:  King  v.  Chase,  15 
N.  H.  9,  41  Am.  Dec.  675;  Chamberlain  v.  Carlisle,  26  N.  H.  540; 
Burlen  v.  Shannon,  3  Gray  (Mass.),  387,  389:  Day  v.  Floyd,  130 
Mass.  488;  Emery  v.  Hildreth,  2  Gray  (Mass.),  228;  Aron  v.  Chaff e, 
72  Miss.  159;  Dorrell  v.  State,  83  Ind.  357;  Key  v.  Dent,  14  Md.  86, 
98:  Emus  v.  Smith,  14  How.  (U.  S.)  400,  430;  Faulcon  v.  Johnson, 
102  X.  C.  264,  11  Am.  St.  Rep.  737. 

9  Involved  in  Geyer  v.  Aguilar,  1798.  7  T.  R.  681. 
WLeggatt  v.  Tollervey,  1811,  14  East,  302;  and  see  Caddy  v.  Barlow, 
1827,  1  Man.  &  Ry.  277. 

11  Allen  v.  Dundas,  1789,  37  R.  125.  In  this  case  the  will  to  which 
probate  had  been  obtained  was  forged. 

12  Judgment  of  Lord  Holt  in  Philips  v.  Bury,  1788,  2  T.  R.  346,  351. 

13  Assumed  in  Needham  v.  Bremner,  1866,  L.  R.  1  C.  P.  583. 


A  DIGEST  OF  U'akt  I. 


The  record  of  judgment  is  not  admissible  for  any  purpose  against 
a  person  not  a  party  or  privy  to  it,  except  to  prove  the  fact  that 
such  a  judgment  was  rendered.  Smith  v.  Chapin,  31  Conn.  532; 
Trubee  v.  Wheeler,  53  Conn.  461.  See,  also,  Cowles  v.  Harts,  i 
Conn.  552;  Union  Mfg.  Co.  v.  Pitkin,  14  Conn.   183. 

The  grant  of  probate  is  conclusive  proof  of  executorship  as  to  all 
persons.  Steen  v.  Bennett,  24  Vt.  303;  Mutual  Ins.  Co.  v.  Tisdale, 
91  U.  S.  238,  243;  Quidort  v.  I'ergeaux,  18  N.  J.  Eq.  472. 

A  decree  granting  administration  upon  the  estate  of  a  living  per- 
son is  void  for  want  of  jurisdiction.  Jochumsen  v.  Suffolk  Sav.  Bank, 
3  Allen  (Mass.),  89;  Lavin  v.  Emigrant  Sav.  Bank,  18  Blatchf. 
1,  36;  Stevenson  v.  Super  Ct.,  62  Cal.  60;  Thomas  v.  People,  107  111. 
517;  Devlin  v.  Com.,  101  Pa.  273;  Springer  v.  Shavender,  118  N.  C. 
33. 

A  decree  appointing  a  trustee  is  conclusive  proof  of  the  existence 
of  the  trust  relation.     Bassett  v.  Crafts,  129  Mass.  513. 

A  decree  appointing  a  guardian  is  conclusive  proof  of  the  exist- 
ence of  the  guardianship.     Farrar  v.  Olmstead,  24  Vt.  123. 

A  decree  of  admission  to  citizenship  is  conclusive  proof  of  citizen- 
ship. State  v.  MacDonald,  24  Minn.  48;  Mut.  Ins.  Co.  v.  Tisdale,  91 
U.  S.  238,  245;  People  v.  McGowan,  77  111.  644. 

A  valid  decree  of  divorce  is  conclusive  upon  the  world.  Adams  v. 
Adams,  154  Mass.  290:  In  re  Eickhoff,  101  Cal.  600. 

The  grant  of  probate  is  conclusive  proof  of  executorship  to  all  per- 
sons.   Kelly  v.  West,  80  N.  Y.  139;  N.  Y.  Code  Civ.  Pro.,  sec.  2591. 

So  the  appointment  as  a  receiver,  of  the  receivership.  Whittlesey 
v.  Frantz,  74  N.  Y.  456. 

A  valid  decree  of  divorce  is  conclusive  upon  the  world.  Hunt  v. 
Hunt,  72  N.  Y.  217. 

As  to  impeaching  a  decree  of  divorce  for  want  of  jurisdiction,  see 
People  v.  Baker,  76  M.  Y.  78. 

By  statute,  a  decree  by  a  surrogate,  determining  the  fact  of  death 
of  a  person  supposed  to  be  dead  is  deemed  conclusive,  for  the  pur- 
pose of  rendering  the  acts  of  the  administrator  valid  until  his  au- 
thority is  revoked.  Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460. 
But  the  clerk  of  the  surrogate  does  not  have  this  power.  Roderigas 
v.  East  Rioer  Sav.  Inst.,  76  N.  Y.  316.  See  Bolton  v.  Schriever,  135 
N.  Y.  65. 


Ciiap.  IV.]  THE  LAW  OF  EVIDENCE.  223 

A  decree  of  divorce  is  conclusive  evidence  that  the  cause  for  which 
it  was  granted  existed.     Clarke  v.  Lott,  11  111.  105. 

A  decree  of  admission  to  citizenship  is  conclusive  proof  of  citizen 
ship.     People  v.  McGowan,  11  111.  644. 

A  decree  granting  administration  upon  the  estate  of  a  living  per- 
son is  void  for  want  of  jurisdiction.     Thomas  v.  People,  107  111.  517. 

Judgment  conclusive  proof  of  legal  effect. —  Grant  Township  v. 
Reno  Tcicnship,  107  Mich.  409,  114  Mich.  41;  Rouse,  etc.,  Co.  v 
Detroit  Cycle  Co.,  Ill  Mich.  251. 

The  basis  of  a  judgment  cannot  be  proved  by  the  briefs.  Greenlee 
v.  Lowing,  35  Mich.  63. 

A  criminal  record  is  not  admissible  in  a  subsequent  civil  case 
English  v.  Caldwell,  30  Mich.  362. 

Judgments  are  admissible  when  they  concern  the  same  subject- 
matter  and  are  rendered  in  proceedings  between  the  same  parties. 
Phillips  v.  Jamieson,  51  Mich.   153. 

New  Jersey. 

Status  as  executor  or  administrator. —  The  granting  of  letters  of 
administration  by  the  Probate  Court  is  conclusive  as  to  one's  status 
as  administrator.     Plume  v.  Savings  Inst.,  46  N.  J.  L.  211. 

The  grant  of  probate  is  conclusive  proof  of  executorship  as  to  all 
persons.     Quidort  v.  Pergeaux,  18  N.  J.  Eq.  472. 

Personal  status. —  A  judgment  as  to  personal  status  is  conclusive. 
McClurg  v.  Terry,  21  N.  J.  Eq.  225. 

Guardianship. —  Letter  of  guardianship  is  conclusive.  Vandervere 
v.  Gaston,  25  N.  J.  L.  623. 

Probate  of  a  will. —  Decree  of  the  Orphans'  Court  on  question  of 
probate  is  no  evidence  as  to  the  validity  of  the  will  in  an  action  of 
ejectment.    Den.  v.  Ayres,  13  N.  J.  L.  153. 

Maryland. 

Authorities. —  Dorrell  v.  State,  83  Md.  357. 

A  decree  in  chancery  equally  with  a  judgment  at  law  is  admis 
sible  even  as  against  strangers  to  show  rem  ipsam.  Key  v.  Dent, 
14  Md.  86. 

A  decree  appointing  plaintiff  as  receiver  is  admissible  to  show 
his  authority  to  sue  as  such.     Frank  v.  Morrison,  58  Md.  423. 

A  decree  in  equity  is  admissible  to  prove  the  fact  of  its  entry  and 
its  legal  consequences,  even  as  against  strangers  to  it.    Parr  v.  State, 


224  A  DIGEST  OF  [Part  I. 

71  Md.  220;  Key  v.  Dent,  14  Md.  86;  Dorset/  v.  Gassaway,  2  H.  &  J. 
402. 

A  decree  of  a  court  of  equity  that  property  shall  be  deemed  the 
separate  estate  of  a  wife  is  admissible  in  an  attachment  of  such 
property  for  the  debt  of  the  husband.     Smith  v.  McAtee,  27  Md.  420. 

The  refusal  of  probate  to  a  will  bars  the  devisee  from  thereafter 
proceeding  in  ejectment  on  the  will.    Johns  v.  Hodges,  62  Md.  525. 

Pennsylvania. 

Authorities. —  Masser  v.  Strickland,  17  S.  &  R.  354. 

The  record  of  the  conviction  of  the  criminal  is  admissible  in  an 
action  for  the  reward  offered  for  hirm     York  v.  Forscht,  23  Pa.  391. 

A  decree  establishing  the  status  of  an  ousted  stockholder  of  a 
corporation  to  be  that  of  a  creditor  is  conclusive.  Reading  Iron 
Works  Estate,  149  Pa.  182. 

A  report  of  the  county  auditor  passing  the  sheriff's  bill  for  fees 
against  the  county  is  in  effect  a  judgment  and  concludes  the  sheriff 
from  thereafter  asking  a  larger  amount.  Northampton  Co.  v.  Her- 
man,  119  Pa.  373. 

Probate  of  a  will  conclusive  if  not  contested  within  five  years. 
Cochran  v.  Young,  104  Pa.  333. 

A  decree  granting  administration  upon  the  estate  of  a  living  per- 
son is  void  for  want  of  jurisdiction.     Devlin  v.  Com.,  101  Pa.  273. 

Article  41. 

judgments  conclusive  as  between  parties  and  privies 
of  facts  forming  ground  of  judgment. 

Every  judgment  is  conclusive  proof  as  against  parties 
and  privies  of  facts  directly  in  issue  in  the  case,  actually 
decided  by  the  Court,  and  appearing  from  the  judgment 
itself  to  be  the  ground  on  which  it  was  based;  unless 
evidence  was  admitted  in  the  action  in  which  the  judgment 
was  delivered  which  is  excluded  in  the  action  in  which  that 
judgment  is  intended  to  be  proved.14 

14  R.  v.  Hutchins,  1880,  5  Q.  B.  D.  353,  supplies  a  good  illustration 
of  this  principle. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  225 

Illustrations. 

(a)  The  question  is,  whether  C,  a  pauper,  is  settled  in  parish  A  or 
parish  B. 

D  is  the  mother  and  E  the  father  of  C.  D,  E,  and  several  of  their 
children  were  removed  from  A  to  B  before  the  question  as  to  C's  settle- 
ment arose,  by  an  order  unappealed  against,  which  order  described  D 
as  the  wife  of  E. 

The  statement  in  the  order  that  D  was  the  wife  of  E  is  conclusive 
as  between  A  and  B.15 

( b )  A  and  B  each  claim  administration  to  the  goods  of  C,  deceased. 
Administration  is  granted  to  B,  the  judgment  declaring  that,  as  far 

as  appears  by  the  evidence,  B  has  proved  himself  next  of  kin. 

Afterwards  there  is  a  suit  between  A  and  B  for  the  distribution  of 
the  effects  of  C.  The  declaration  in  the  first  suit  is  in  the  second  suit 
■conclusive  proof  as  against  A  that  B  is  nearer  of  kin  to  C  than  A.16 

(c)  A  company  sues  A  for  unpaid  premium  and  calls.  A  special 
case  being  stated  in  the  Court  of  Common  Pleas,  A  obtains  judgment 
on  the  ground  that  he  never  was  a  shareholder. 

The  company  being  wound  up  in  the  Court  of  Chancery,  A  applies 
for  the  repayment  of  the  sum  he  had  paid  for  premium  and  calls.  The 
decision  that  he  never  was  a  shareholder  is  conclusive  as  between  him 
and  the  company  that  he  never  was  a  shareholder,  and  he  is  therefore 
entitled  to  recover  the  sums  he  paid.17 

(d)  A  obtains  a  decree  of  judicial  separation  from  her  husband  B, 
on  the  ground  of  cruelty  and  desertion,  proved  by  her  own  evidence. 

Afterwards  B  sues  A  for  dissolution  of  marriage  on  the  ground  of 
adultery,  in  which  suit  neither  B  nor  A  can  give  evidence.  A  charges 
B  with  cruelty  and  desertion.  The  decree  in  the  first  suit  is  deemed  to 
be  irrelevant  in  the  second. 18 

is  R.  v.  Hartington  Middle  Quarter,  1855,  4  E.  &  B.  780;  and  see 
Flitters  v.  Allfrey,  1S74,  L.  R.  10  C.  P.  29;  and  contrast  Dover  v. 
Child,  1876;  1  Ex.  Div.  172. 

WBarrs  v.  Jackson,  1845,  1  Phill.  582,  587,  588. 

IT  Bank  of  Hindustan,  &c.,  Alison's  Case,  1873,  L.  R.  9  Ch.  App. 
24. 

18  Stoate  v.  Stoate,  1861,  2  Swa.  &  Tri.  223.     Both  would  now  be 
■competent  witnesses  in  each  suit. 
15 


220  A  DIGEST  OF  [Pabt  I. 


AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed.),  sec.  524  et 
seq.;  Thayer's  Preliminary  Treatise  on  Evidence,  p.  398  et  seq.; 
Sanderson  v.  Peabody,  58  N.  H.  116;  Quinn  v.  Quinn,  16  Vt.  426; 
Woodruff  v.  Woodruff,  1 1  Me.  475 ;  Bradley  v.  Bradley,  1 1  Me.  367 ; 
Kendall  v.  School  District,  75  Me.  358;  Beloit  v.  Morgan,  7  Wall.  619, 
622;  Marsteller  v.  Marsteller,  137  Pa.  St.  517;  Orthwein  v.  Thomas, 
127  111.  554;  Fenunck  Hall  Co.  v.  Old  Saybrook,  69  Conn.  40;  Bethle- 
hem v.  Watertown,  47  Conn.  237;  Burritt  v.  fteZfv,  47  Conn.  323; 
Burlen  v.  Shannon,  3  Gray  (Mass.),  387;  McCaffrey  v.  Carter,  125 
Mass.  330;  TWii<e  v.  Weatherbee,  126  Mass.  450;  J5Hss  v.  2V.  F.  Cent, 
ft.  ft.  Co.,  160  Mass.  447,  455;  Fuller  v.  Shattuck,  13  Gray  (Mass.), 
70;  Miller  v.  Miller,  150  Mass.  Ill;  Bradley  v.  Brigham,  149  Mass. 
141;  Bigelow  v.  Winsor,  1  Gray   (Mass.),  299. 

A  judgment  is  conclusive  as  to  facts  within  the  issues  and  actually 
litigated.  Parol  evidence  is  admissible  to  prove  what  was  litigated. 
Embden  v.  Lisherness,  89  Me.  578;  Campbell  v.  Rankins,  99  U.  S. 
261;  Title  Co.  v.  Shallcross,  147  Pa.  St.  385;  Palmer  v.  Sanger,  143 
111.  34;  Harding  v.  Bader,  75  Mich.  323;  SJowe  v.  £*.  Louis  Stamping 
Co.,  155  Mass.  267. 

In  a  subsequent  suit  on  the  same  cause  of  action,  a  judgment  is 
conclusive  as  to  all  matters  within  the  issues,  which  might  have 
been  litigated,  whether  they  actually  were  or  not.  Bassett  v.  Conn. 
Riv.  ft.  ft.  Co.,  150  Mass.  179;  Foye  v.  Patch,  132  Mass.  110;  Ben- 
nett v.  Hood,  1  Allen  (Mass.),  47;  Horner  v.  Fish,  1  Pick.  (Mass.) 
435;  Wright  v.  Anderson,  117  Ind.  315;  Diamond  State  Iron  Co.  v. 
Rarig,  93  Va.  595;  Petersine  v.  Thomas.  28  O.  St.  596;  Fwnfc  v.  Funk, 
35  Mo.  App.  246. 

If  the  second  suit  is  upon  a  different  cause  of  action,  the  judgment 
is  conclusive  only  as  to  matters  actually  litigated,  not  as  to  those 
which  might  have  been  litigated.  Foye  v.  Patch,  132  Mass.  106; 
Gilbert  v.  Thompson,  9  Cush.  (Mass.)  348;  Morse  v.  Elms,  131  Mass. 
151:  Evans  v.  Clapp,  123  Mass.  165;  Newell  v.  Carpenter,  118  Mass. 
411:  Sibley  v.  Hulbert,  15  Gray  (Mass.).  509:  Norton  v.  Huxley,  13 
Gray  (Mass.),  285;  Gage  v.  Holmes,  12  Gray  (Mass.).  428;  Burnett 
v.  Smith.  4  Gray  (Mass.),  50;  Norton  v.  Doherty,  3  Gray  (Mass.), 
372;   Metcalf  v.   Gilmore,  63  N.  H.   174,   181;   Nesbitt  v.  Riverside 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  227 

Dist.,  144  U.  S.  610;  Hixson  v.  Ogg,  53  0.  St.  361;  Wright  v.  Griffey, 
147  111.  496;  Bond  v.  Markstrum,  102  Mich.  11. 

A  judgment  at  law  or  decree  in  equity  of  a  court  having  juris- 
diction is  conclusive  between  the  parties  to  it  and  their  privies,  upon 
every  material  fact  in  issue,  and  cannot  be  collaterally  impeached. 
Peck  v.  Woodbridge,  3  Day  (Conn.),  36;  Canaan  v.  Greenwoods 
Turnpike  Co.,  1  Conn.  6;  Willey  v.  Paulk,  6  Conn.  75;  Griswold  v. 
Bigelow,  6  Conn.  264;  Sears  v.  Terry,  26  Conn.  280,  282;  McLoud 
v.  Selby,  10  Conn.  396;  Holcomb  v.  Phelps,  16  Conn.  131;  Ormsbee  v. 
Davis,  16  Conn.  576.  But  where  jurisdiction  can  be  obtained  only 
through  the  actual  existence  of  some  fact,  a  decree  by  a  court  which 
decides  that  such  fact  exists  can  be  attacked  collaterally  and  shown  to 
be  invalid.  Scott  v.  McNeal,  154  U.  S.  34.  See  People's  Sav.  Bank 
V.  Wilcox,  15  R.  I.  258;  Noble  v.  Union  River  Co.,  147  U.  S.  165,  173. 

A  judgment  is  conclusive  as  to  facts  within  the  issues  and  actually 
litigated.  Parol  evidence  is  admissible  to  prove  what  was  litigated. 
Boxce  v.  Wilkins,  105  X.  Y.  322.  See  Lewis  v.  Ocean  Nav.  Co.,  125 
ST.  Y.  341. 

In  a  subsequent  suit  on  the  same  cause  of  action  a  judgment  is 
conclusive  as  to  all  matters  within  the  issues,  which  might  have  been 
litigated,  whether  they  actually  were  or  not.  Secor  v.  Sturgis,  16 
N.  Y.  548;  Pray  v.  Hegeman,  98  N".  Y.  351;  Farrington  v.  Payne,  15 
Johns.  432;  Stevens  v.  Lockwood,  13  Wend.  644;  Schopen  v.  Bald- 
win, 83  Hun,  234;  Binck  v.  Wood,  43  Barb.  315.  This  includes 
grounds  of  recovery  or  defense,  permissible  under  the  issues,  but 
not  presented  by  a  defendant  in  the  former  suit.  White  v.  Mrrritt, 
7  N.  Y.  352;  Malloney  v.  Horan,  49  N.  Y.  Ill;  Reich  v.  Cochran, 
151  N.  Y.  122.  But  set-off  and  recoupment,  not  previously  pleaded, 
may  be  the  subject  of  an  independent  suit,  if  their  recovery  is  not 
inconsistent  with  the  findings  of  the  former  judgment.  Brown  v. 
Gallaudet,  80  1ST.  Y.  413;  Malloney  v.  Horan,  49  X.  Y.  Ill;  Yates  v. 
Fassett,  5  Den.  21,  29,  30.  If  pleaded  and  determined,  a  subsequent 
action  cannot  be  had  thereon.     Patrick  v.  Shaffer,  94  N.  Y.  423. 

If  the  second  suit  is  upon  a  different  cause  of  action,  the  judgment 
is  conclusive  only  as  to  matters  actually  litigated,  not  as  to  those 
which  might  have  been  litigated.     See  cases  above. 

Conclusive  judgment. —  But  a  conclusive  judgment,  barring  another 
action,  must  be  a  final  decision  on  the  merits.  Webb  v.  Buckelew,  82 
N.  Y.  555.  A  nonsuit  is  not  such  a  decree.  Wheeler  v.  Ruckeman, 
51  X.  Y.  391.     Nor  a  discontinuance.     Locb  v.  Willis,  100  X.  Y.  231. 


228  A  DIGEST  OF  [Pabt  1. 

Nor  the  sustaining  of  a  plea  in  abatement.  Springer  v.  Bien,  128 
N.  Y.  99.  Nor  a  decree  where  an  action  was  prematurely  brought. 
Rose  v.  Haicley,  141  N.  Y.  366.  Nor  where  there  is  a  verdict,  but  no 
judgment  entered.    Springer  v.  Bien,  128  N.  Y.  99. 

A  judgment  is  conclusive  as  to  facts  within  the  issues  and  actually 
litigated.  Parol  evidence  is  admissible  to  prove  what  was  litigated. 
Palmer  v.  Sanger,  143  111.  34. 

If  the  second  suit  is  upon  a  different  cause  of  action,  the  judg- 
ment is  conclusive  only  as  to  matters  actually  litigated,  not  as  to 
those  which  might  have  been  litigated.  Wright  v.  Griffey,  147  111. 
496. 

The  identity  of  parties  in  different  suits  may  be  shown  by  parol 
evidence.     HeacocJc  v.  Lubiikee,  108  111.  641. 

Former  recovery  may  be  shown  under  the  general  issue.  Warren 
v.  McNulty,  2  Gilm.  355. 

Where  a  judgment  does  not  indicate  clearly  the  point  involved, 
outside  evidence  is  competent.     Ryan  v.  Potwin,  62  111.  App.  134. 

Judicial  proceedings  cannot  be  questioned  collaterally.  Gage  v. 
Parker,  103  111.  528;  Keith  v.  Keith,  104  111.  398. 

Judgments  conclusive  between  the  parties. — Bates  v.  Spooner,  45 
Ind.  489;  Campbell  v.  Cross,  39  Ind.  155;  Gavin  v.  Graydon,  41  Ind. 
559;  Hackleman  v.  Harrison,  50  Ind.  156;  Kress  v.  State,  65  Ind. 
106;  Larr  v.  State,  45  Ind.  364;  Pressler  v.  Turner,  57  Ind.  56. 

In  a  subsequent  suit  on  the  same  cause  of  action,  a  judgment  is 
conclusive  as  to  all  matters  within  the  issues,  which  might  have 
been  litigated,  whether  they  actually  were  or  not.  Wright  v.  Ander- 
son, 117  Ind.  315;  Lieb  v.  Lichtenstein,  121  Ind.  483;  Goble  v.  Dil- 
lon, 86  Ind.  327. 

A  judgment  is  a  bar  only  as  to  matters  in  issue.  Winship  v. 
Winship,  43  Ind.  291. 

So  as  to  parties  brought  into  a  suit  on  motion.  City  v.  Wickwire, 
87  Ind.  77;  White  v.  Webster,  58  Ind.  233;  Broicn  v.  Eaton,  98  Ind. 
591. 

Persons  are  bound  by  judgments  only  in  the  character  in  which 
they  appear  as  parties  litigant.  Lord  v.  Wilcox,  99  Ind.  491;  Elliott 
v.  Frakes,  71  Ind.  412. 

A  judgment  may  be  admissible,  even  though  it  is  not  conclusive. 
Clrrclnnd  v.   Ohcnchain,  107   Ind.  591. 

Whore  the  issues  of  a  case  involve  the  record  of  a  former  pro- 
ceeding,  sue!:    record,   or  parts  thereof   relevant  to  the  issues,   may 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  229 

be  introduced  in  evidence.  Kramer  v.  Williamson,  135  Ind.  655, 
660. 

In  order  to  render  a  record  admissible,  it  should  show  that  the 
court  had  jurisdiction.  Cline  v.  Gibson,  23  Ind.  11;  Phelps  v.  Til- 
ton,  17  Ind.  423. 

A  bill  of  exceptions  is  admissible  to  show  the  identity  of  the 
subject-matter  of  two  suits.     Miles  v.  Wingate,  6  Ind.  458. 

In  an  action  by  an  attorney-at-law  for  professional  services  ren- 
dered in  a  certain  case,  the  record  of  the  cause  of  action  is  ad- 
missible in  evidence  as  part  of  the  history  of  the  case,  showing  the 
amount  of  recovery,  and  the  services  rendered.  McFadden  v.  Ferris, 
6  Ind.  App.  454,  455. 

In  such  an  action  the  judgment  is  admissible  in  evidence  as  a 
part  of  the  record,  not  being  subject  to  the  objection  of  want  of 
mutuality,  as  such  rule  only  applies  when  it  is  sought  to  bind  a 
party  by  the  recitals  of  the  judgment.  McFadden  v.  Ferris,  6  Ind. 
App.  454,  457. 

The  record  of  a  justice  of  the  peace  is  competent  evidence  of  the 
proceedings  had  in  a  suit  before  him.  Redelsheimer  v.  Miller,  107 
Ind.  485,  489. 

Judge's  notes  of  evidence. —  The  judge's  notes  of  evidence  are  not 
ordinarily  admissible  as  evidence  in  the  trial  of  another  issue. 
Citizen's  State  Bank  v.  Adams,  91  Ind.  280,  287. 

New  Jersey. 

Facts  in  issue. —  A  former  decree  or  judgment  is  not  conclusive 
as  to  any  matter  unless  that  matter  was  in  issue.  Richmond  v. 
Hays,  3  N.  J.  L.  492. 

A  judgment  is  conclusive  as  to  facts  upon  which  it  must  have 
been  based.     Trustees  v.  Stocker,  42  N.  J.  L.  115. 

Judgment  of  court  of  competent  jurisdiction,  on  question  of  fact 
or  law,  while  unreversed  is  binding  upon  parties  and  their  privies. 
Paterson  v.  Baker,  51  N.  J.  Eq.  40. 

In  a  second  action  for  the  same  claim,  the  former  judgment  is 
final  as  to  anything  which  might  have  been  litigated  in  the  first 
action;  but  where  the  second  action  is  for  a  different  claim,  the 
judgment  is  final  only  as  to  such  matters  as  actually  were  litigated. 
Id. 


230  A  DIGEST  OF  [Paut  I. 

Judgment  by  default. —  A  judgment  by  confession  or  default  is 
as  conclusive  as  other  judgments.  Cook  v.  Mct'ahill,  41  N.  J.  Eq. 
69;   Gifford  v.  Thorn,  9  N.  J.  Eq.  702. 

Instances. —  A  corporation  is  concluded  by  a  judgment  in  a  suit 
brought  against  it  by  one  stockholder,  in  other  suits  of  a  similar 
character  brought  by  other  stockholders.  Willoughby  v.  Chicago 
June,  etc.,  Co.,  50  N.  J.  Eq.  656. 

A  settlement  by  one  joint  tort-feasor  bars  a  suit  against  another ; 
and  a  decree  that  such  a  settlement  was  not  obtained  by  fraud  is 
conclusive  in  favor  of  the  others.  Spurr  v.  Railroad  Co.,  56  N.  J.  L. 
346. 

A  judgment  is  binding  on  a  wife,  though  not  made  a  formal  party, 
if  she  causes  her  husband  to  defend  the  case  in  her  behalf  and  as 
her  agent.    Lyon  v.  Standford,  42  N.  J.  Eq.  411. 

The  determination  of  the  Orphans'  Court  as  to  the  amount  charged 
against  executors  is  presumed  to  be  correct.  Vanpelt  v.  Veghte,  2 
Green,  210. 

A  judgment  in  attachment  does  not  conclude  the  defendant  as 
to  the  debt  for  which  it  was  entered.  SchencJc  v.  Griffin,  38  N.  J.  L. 
462. 

In  interpleader  by  an  owner  to  determine  how  much  a  contractor 
owes  a  subcontractor,  a  subsequent  default  judgment  by  the  latter 
against  the  former  is  not  conclusive.     Norcross  v.  Dillon,  32  Atl.  701. 

Interlocutory  order  not  conclusive. —  Selz  v.  Presburger,  49  N.  J.  L. 
396. 

A  dismissal  in  equity,  when  not  on  the  merits,  is  no  bar.  Hen- 
ninger  v.  Heald,  51  N.  J.  Eq.  74. 

As  to  the  effect  of  a  judgment  in  an  action  where  evidence  inad- 
missible in  this  action  was  received,  see  Putnam  v.  Clark,  34  N.  J. 
Eq.  532. 

Statute. —  Failure  to  plead  plene  administravit  is  not  conclusive 
evidence  of  a  devastavit.     G.  S.  1895,  "  Evidence,"  18. 

Maryland. 

Authorities. —  Clagett  v.  Easterday,  42  Md.  617;  Butler  v.  State, 
5  G.  &  J.  511;  Hitch  v.  Davis,  8  Md.  524. 

The  fact  that  the  form  of  the  second  action  is  different  from  that 
of  the  first  makes  no  difference.  Walsh  v.  Chesapeake  R.  Co.,  59 
Md.  423. 

When  in  an  injunction  proceeding  it  is  decided  that  the  barn 
bring  built  by  defendant  is  not  on  plaintiff's  land,  such  decision  is 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  231 

conclusive  in  «a  later  action  brought  on  the  injunction  bond  for  dam- 
ages.    Lange  v.  Wagner,  52  Md.  310. 

An  order  approving  an  auditor's  account  is  a  decretal  order  and 
the  matters  become  res  ad  judicata.  Lindsay  v.  Kirk,  95  Md.  50; 
Bank  v.  Heller,  94  Md.  213. 

Matters  in  issue. —  Whitehurst  v.  Rogers,  38  Md.  503 ;  Robertson 
v.  Parks,  70  Md.   118. 

Judgment  conclusive  as  to  matters  that  were  in  issue.  Clagett 
v.  Easterday,  42  Md.  017. 

The  construction  given  a  deed  in  a  judgment  is  conclusive  as  be- 
tween the  parties.     Oursler  v.  B.  &  0.  R.  Co.,  00  Md.  358. 

A  judgment  on  the  merits  in  the  same  cause  of  action  is  con- 
elusive  as  between  the  parties  in  a  subsequent  action.  Beall  v. 
J'carre,  12  Md.  550. 

A  judgment  is  conclusive  upon  parties  and  privies  as  to  all  ques- 
tions adjudicated.     Barrick  v.   Horner,   78  Md.   253. 

Matters  that  might  have  been  determined. —  As  between  the  par- 
ties, a  judgment  is  conclusive  of  all  matters  which  might  have  been 
litigated  in  the  suit,  where  every  claim  made  in  the  second  suit 
might  have  been  made  in  the  first.  Brown  v.  State,  64  Md.  199; 
Archer  v.  State,  74  Md.  410;  Wagoner  v.  Wagoner,  76  Md.  311. 

A  decree  is  conclusive  upon  the  parties  as  to  all  matters  that 
could  and  should  have  been  presented.  Royston  v.  Horner,  86  Md. 
249. 

Collateral  matters. —  A  judgment  is  not  conclusive  as  to  matters 
only  incidentally  or  collaterally  involved,  even  though  passed  upon. 
Sivgery  v.  Atty.-Gen.,  2  Har.  &  J.  487. 

A  judgment  is  not  conclusive  as  to  any  matter  not  in  issue.  Oar- 
rott  v.  Johnson,  11  G.  &  J.  173;  Cecil  v.  Cecil,  19  Md.  72. 

Who  are  concluded  by  the  judgment. —  Joint  parties  in  interest 
having  knowledge  of  the  suit  are  bound  by  the  judgment.  Albert 
v.  Hamilton,  76  Md.  304. 

Parties  to  a  proceeding  are  those  having  a  right  to  control  them, 
to  defend,  to  examine  witnesses,  and  to  appeal.  Cecil  v.  Cecil,  19 
Md.  72. 

Privies  are  concluded  by  a  judgment  equally  with  parties.  Cecil 
v.  Cecil,  19  Md.  72;  Keene  v.  Van  Reuth,  48  Md.  184. 

One  who  seeks  payment  out  of  funds  obtained  through  a  decree 
in  an  action  between  others  will  not  be  allowed  afterward  to  im- 
peach the  decree.     Bank  v.  Thomas,  37  Md.  246. 


232  A  DIGEST  OF  [Paet  I. 

Sureties  on  a  guardian's  bond  are  bound  by  the  judgment  in  an 
action  against  the  guardian,  if  they  appear  and  take  part  by  counsel. 
Parr  v.  State,  71  Md.  220. 

One  participating  in  an  action  as  an  attorney  held  to  be  concluded 
by  the  decree.    Kerr  v.  Bank,  18  Md.  396. 

Instance  of  a  judgment  binding  on  one  not  a  party  thereto  but 
directly  interested.     Savin  v.  Bond,  57  Md.  228. 

A  judgment  against  a  debtor  is  conclusive  of  the  fact  of  the  debt 
as  against  a  garnishee.     Summers  v.  Obcrndorf,  73  Md.  312. 

Judgment  by  default. —  Judgment  by  default  is  conclusive  on  the 
parties.     Walsh  v.  Mclntire,  68  Md.  402. 

Pennsylvania. 

Authorities. —  Bickford  v.  Cooper,  41  Pa.  142;  Marsteller  v.  Mar- 
steller,   132  Pa,   517. 

In  malicious  prosecution,  the  record  is  admissible  to  show  ac- 
quittal and  that  the  defendant  was  prosecutor.  Katterman  v.  Stit- 
zer,  7  Watts,  189. 

Conviction  in  a  criminal  proceeding  for  reckless  driving  is  not 
admissible  in  an  action  against  the  driver  by  a  person  injured. 
Summers  v.  Brewing  Co.,   143  Pa.   114. 

A  judgment  by  confession  or  default  is  held  to  be  conclusive  on 
the  parties.  Orr  v.  Fire  Ins.  Co.,  114  Pa.  387;  ^Yearer  v.  Adams, 
132  Pa.  392;  Stayton  v.  Graham,  139  Pa.  1;  Spring  Run  Co.  v. 
Tosier,  102  Pa.  342. 

Judgment  on  demurrer  for  defendant  on  the  merits  is  not  a  bar 
to  a  new  action  on  the  same  allegations  so  amended  as  to  present 
a  good  cause  of  action.     Detrick  v.  Sharrar,  95  Pa.  521. 

Interlocutory  judgment  as  a  bar.  FrauenthaVs  Appeal,  100  Pa. 
290. 

One  who  submits  his  claim  to  a  competent  court  and  has  it  adju- 
dicated cannot  inter  be  heard  as  to  the  same  matter  in  another  court 
or  another  form  of  action.  Otterson  v.  Gallagher,  88  Pa.  355;  Alii 
V.  Goodhart,  161  Pa.  455;  Com.  v.  Comrcy,  174  Pa.  355;  Westcott 
v.  Edmunds,  68  Pa.  34. 

Circumstances  under  which  a  dismissal  of  a  petition  to  open  a 
judgment  is  not  conclusive  of  the  facts  upon  which  the  petition 
was  based.     Himes  v.  Kiehl,  154  Pa.   190. 

A  judgment  is  conclusive  as  to  all  matters  actually  raised  in  the 
suit  and  all  which  might  have  been  raised  by  the  exercise  of  due 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  233 

diligence  in  preparing  and  trying  the  case.  Fidelity  Co.  v.  Gazzam, 
2  Pa.  Dist.  569;  Pennock  v.  Kennedy,  153  Pa.  579. 

A  recital  in  a  judgment  that  it  was  given  to  secure  payment  of 
purchase  money  of  real  estate  is  conclusive  upon  the  parties.  Haw- 
bickers  Estate,  6  Pa.  Co.  Ct.  570. 

Matters  in  issue. —  Judgment  conclusive  as  to  all  facts  actually 
decided.     White  v.  Reynolds,  3  P.  &  W.  96. 

If  they  do  not  appear  upon  the  record  they  may  he  shown  by  parol ; 
but  such  evidence  is  not  allowed  to  contradict  the  record.  Roberts 
v.  Orr,  56  Pa.  176;  Title  Co.  v.  Shallcross,  147  Pa,  485;  Follansbee 
v.  Walker,  74  Pa.  306. 

A  judgment  is  conclusive  as  to  all  matters  directly  involved  in 
the  proceeding.  Wetherald  v.  Van  Stavoren,  125  Pa.  535;  Donaghy 
v.  Gill,  152  Pa.  92;  Kilhcffcr  v.  TIerr,  17  S.  &  R.  319.  But  not  as 
to  matters  only  indirectly  or  collaterally  involved  even  though  they 
were  passed  on.  Blackmore  v.  Gregg,  10  Watts,  222;  Lentz  v.  Wal- 
lace, 17  Pa.  412;  Tarns  v.  Lewis,  42  Pa.  402;  Appeal  of  Lewis,  67 
Pa.  153;  Carmack  v.  Com.,  5  Binn.  184;  Howe  v.  Bank,  1  Atl.  7S7. 

A  judgment  is  conclusive  of  every  fact  upon  which  it  must  have 
been  founded.  Hamner  v.  Griffith,  1  Grant,  193;  Cypheri  v.  Ma- 
chine, 22  Pa.  195;  Overseers  v.  Overseers,  95  Pa.  269. 

Ejectment. —  Recovery  in  ejectment  is  conclusive  of  title  as  be- 
tween parties  and  privies.  Levers  v.  Van  Buskirk,  4  Pa.  309.  But 
see  Eichert  v.  Schaeffer,  161  Pa.  519,  and  Stevens  v.  Hughes,  31 
Pa,   381. 

The  former  action  must  have  involved  the  same  parties,  the  same 
land,  nnd  the  same  title.     Chase  v.  Irwin,  87  Pa.  286. 

In  ejectment  against  a  landlord  in  possession  by  the  purchaser 
at  sheriff's  sale  of  the  leasehold  estate,  a  judgment  in  ejectment, 
prior  to  such  sheriff's  sale,  against  the  tenant  and  in  favor  of  the 
landlord,  is  conclusive  in  the  latter's  favor.  Seltzer  v.  Bobbins,  181 
Pa.  451. 

Persons  concluded. —  A  judgment  is  conclusive  against  the  heirs 
of  a  party  and  all  claiming  under  him.  Merklein  v.  Trapnell,  34  Pa. 
42;  Straycr  v.  Johnson,  110  Pa.  21;  Reagan  v.  Grim,  13  Pa.  508; 
Follansbee  v.  Walker,  74  Pa.  306. 

The  real  party  in  interest  who  conducts  the  action  is  concluded 
by  the  judgment  though  he  be  not  a  nominal  party.  Peterson  v. 
Lothrop,  34  Pa.  223;  Appeal  of  Dutch  Church,  88  Pa.  503. 


234  A  DIGEST  OF  [Part  I. 


A  judgment  against  a  beneficiary  is  admissible  as  against  the 
trustee  in  another  suit,  the  parties  being  substantially  the  same. 
Calhoun  v.  Dunning,  4  Dall.   120. 

Judgment  against  one  in  a  representative  capacity  held  binding 
on  him  individually.  Miller  v.  Springer,  88  Pa.  203;  Com.  v.  Coch- 
ran,  146  Pa.  223. 

One  who  appears  merely  as  a  witness  is  not  concluded  by  the 
judgment.     In  re  Miller's  Estate,  159  Pa.  562. 

Article  42. 

statements  in  judgments  irrelevant  as  between 
strangers,  except  in  admiralty  cases. 

Statements  contained  in  judgments  as  to  the  facts  upon 
which  the  judgment  is  based  are  deemed  to  be  irrelevant 
as  between  strangers,  or  as  between  a  party,  or  privy,  and 
a  stranger,  except19  in  the  case  of  judgments  of  Courts  of 
Admiralty  condemning  ship  as  a  prize.  In  such  cases  the 
judgment  is  conclusive  proof  as  against  all  persons  of  the 
fact  on  which  the  condemnation  proceeded,  where  such 
fact  is  plainly  stated  upon  the  face  of  the  sentence. 

Illustrations. 

(a)  The  question  between  A  and  B  is,  whether  certain  lands  in  Kent 
had  been  disgavelled.  A  special  verdict  on  a  feigned  issue  between 
C  and  D  ( strangers  to  A  and  B )  finding  that  in  the  2nd  Edw.  VI.  a 
disgavelling  Act  was  passed  in  words  set  out  in  the  verdict  is  deemed 
to  be  irrelevant.20 

(6)  The  question  is,  whether  A  committed  bigamy  by  marrying  B 
during  the  lifetime  of  her  former  husband  C. 

19  This  exception  is  treated  by  Lord  Eldon  as  an  objectionable 
anomaly  in  Lothian  v.  Henderson,  1803,  3  Bos.  &  Pul.  at  p.  545.  See, 
too,  Castrique  v.  Imrie,  1870,  L.  R.  4  E.  &  I.  App.  434-5. 

20  Doe  v.  Rrydges,  1843,  6  M.  &  G.  282. 


Chap.    I  V.J  THE  LAW  OF  EVIDENCE.  233 

A  decree  in  a  suit  of  jactitation  of  marriage,  forbidding  C  to  claim  to 
be  the  husband  of  A,  on  the  ground  that  he  was  not  her  husband,  is 
deemed  to  be  irrelevant.2i 

(c)  The  question  is,  whether  A,  a  shipowner,  has  broken  a  warranty 
to  B,  an  underwriter,  that  the  cargo  of  the  ship  whose  freight  was 
insured  by  A  was  neutral  property. 

The  sentence  of  a  French  prize  court  condemning  ship  and  cargo,  on 
the  ground  that  the  cargo  was  enemy's  property,  is  conclusive  proof  in 
favour  of  B  that  the  cargo  was  enemy's  property  (though  on  the  facts 
the  Court  thought  it  was  not). 22 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed. ),  sees.  523,  525, 
526,  535,  543,  544,  545,  556;  Underbill  on  Evidence,  sec.  1506; 
Lord  v.  Chadbounte,  42  Me.  429,  66  Am.  Dec.  290;  Woodruff  v. 
Taylor,  20  Vt.  65. 

privisies  admits  of  this  exception,  that  one  may  agree  to  stand  in 
I  he  place  of  another  and  to  be  so  fully  answerable  for  his  debt  or 
unlawful  ast  as  that  a  judgment  against  the  latter  shall  conclude 
the  former  as  to  the  amount  of  such  debt  or  damages.  Levick  v. 
Norton,  51  Conn.  470. 

Criminal  sentences  are  not  evidence  in  civil  issues,  the  parties 
being  different,  and  the  objects  and  results  of  the  two  proceedings 
equally  diverse.  Betts  v.  New  Hartford,  25  Conn.  180;  State  v. 
/!r<t<ln<ui:,  69  Conn.  215. 

The  converse  of  this  rule,  namely,  that  a  judgment  in  a  civil 
action  is  not  admissible  in  a  subsequent  criminal  prosecution,  is 
equally  true.    State  v.  Bradnack,  69  Conn.  215. 

Strangers. —  Brigham  v.  F  oyer  weather.  140  Mass.  414  (quoting 
this  article)  ;  Wing  v.  Bishop,  3  Allen  (Mass.).  456;  Wood  v.  Mann, 
125  Mass.  319;  Eastman  v.  Symonds,  108  Mass.  567;  Nettleton  v. 
Beach,  107  Mass.  499:  Finn  v.  Western  Railroad,  102  Mass.  283; 
Leonard  v.  Bryant,  11  Mete.   (Mass.)    370;  Shrewsbury  v.  Boylston, 

I  Pick.  (Mass.)   105;  Tyler  v.  Utmer,  12  Mass.  163;  Perkins  v.  Pitts, 

II  Mass.  125;  Ashmead  v.  Colby,  26  Conn.  315;  Beers  v.  Broome,  4 

21  Duchess  of  Kingston's  Case,  1776.  2  S.  L.  C.  713. 

22  Geyer  v.  Aguilar,  1798,  7  T.  R.  681. 


236  -1  DIGEST  OF  [Part  I. 

Conn.  256,  257;  Betts  v.  Neic  Hartford,  25  Conn.  185;  Stevens  v. 
Curtiss,  3  Conn.  265;  Fowler  v.  Savage,  3  Conn.  96;  Hough  v.  Ives, 
l  Root  (Conn.),  492;  Edey  v.  Williams,  1  Root  (Conn.),  186;  South- 
tngton  Eccl.  Soc.  v.  Qridley,  20  Conn.  202;  Fowler  v.  Collins,  2  Root 
(Conn.),  231;  McLoud  v.  &e%,  10  Conn.  396;  Railroad  Co.  v.  Aa/. 
Bowfc,  102  U.  S.  14;  Jones  v.  Vert,  121  Ind.  140. 

Admiralty. —  Sustaining  text.  Baxter  v.  A  en;  fin^r.  /ns.  Co.,  6 
Mass.  277.     See  dishing  v.  LenVd,  107  U.  S.  09,  80. 

Whenever  a  Court  of  Admiralty  in  one  country  acting  as  a  prize 
court  decides  on  the  question  of  prize,  and  condemns  captured  prop- 
erty, such  sentence  or  decree  is  conclusive  evidence  of  the  character 
of  the  property,  when  brought  in  question  in  any  other  country 
recognizing  the  law  of  nations.  Broicn  v.  Union  Ins.  Co.,  4  Day 
(Conn.),   187. 

The  decree  of  a  foreign  Court  of  Admiralty,  condemning  a  ship  as 
prize,  cannot  be  called  in  question  here  and  impeached  collaterally 
for  fraud  in  procuring  it.     Stewart  v.  Warner,    1  Day  (Conn.),  148. 

Judgments  in  rem. —  Judgments  in  rem  are  conclusive  as  to  every- 
body. Shores  v.  Hooper,  153  Mass.  228;  Brigham  v.  Fayerweather, 
140  Mass.  411,  413;  Gelston  v.  Hoyt,  3  Wheat.  (U.  S.)  246. 

A  judgment  in  rem  is  deemed  irrelevant  to  establish  any  fact  not 
appearing  from  the  proceedings  to  have  been  directly  in  issue  be- 
fore and  decided  by  the  court  even  though  the  fact  must  have  been 
assumed  in  arriving  at  the  judgment.  Lea  v.  Lea,  99  Mass.  493, 
96  Am.  Dec.  772,  and  note. 

An  attachment  suit  against  a  nonresident  possesses  the  character 
of  an  in  rem  proceeding,  the  res  comprising  the  property  attached. 
McKinney  v.  Collins,  88  N.  Y.  216.  But  decisions  relative  to  personal 
status,  in  some  cases,  are  conclusive  only  within  the  State  wherein 
the  decision  is  rendered.     People  v.  Baker,  76  N.  Y.  78. 

New  Jersey. 

Strangers. —  A  judgment  is  not  binding  upon  one  a  stranger  to  it. 
Cox  v.  Flanagan,  2  Atl.  33;  Lehigh  Zinc  Co.  v.  New  Jersey  Zinc  Co., 
55  N.  J.  L.  350;  S.  C,  on  appeal,  28  Atl.  79;  Prall  v.  Patton.  3 
N.  J.  L.  570;  Steward  v.  Middleton,  17  Atl.  294;  Insurance  Co.  v. 
Jackson,  31  N.  J.  Eq.  50. 

A  judgment  against  the  survivors  of  a  partnership  does  not  bind 
the  representatives  of  a  deceased  partner.  Buckingham  v.  Ludlum, 
37   N.  J.   Eq.   137. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  237 

A  judgment  binds  only  parties  and  privies,  and  is  not  even  evi- 
dential against  others.  Lehigh  Z.  d  I.  Co.  v.  New  Jersey  Zinc  &  I. 
Co.,  55  N.  J.  L.  350. 

To  prove  title. —  The  existence  of  a  judgment  as  a  part  of  a  chain 
of  title  may  be  shown  by  the  record  even  in  controversies  with  third 
persons.     Den.  v.  Hamilton,  7  Hal.  109. 

Evidence  of  a  judgment  was  admitted  as  against  a  stranger  to 
show  title  to  personal  property.     Vandoren  v.  Bellis,  7  N.  J.  L.  137. 

Personal  status. —  A  judgment  as  to  personal  status,  e.  g.,  divorce, 
is  similar  to  a  judgment  in  admiralty.  McClurg  v.  Terry,  21  N.  J. 
Eq.   225. 

Statute. —  Conviction  for  embezzlement,  etc.,  not  to  be  proved  in 
a  civil  action  to  recover  the  money.     G.  S.   1895,  "  Crimes,"  159. 

Maryland. 

A  judgment  is  not  binding  on  one  not  a  party  or  privy  to  it. 
Dorsey  v.  Gassaway,  2  Har.  &  J.  402;  McKim  v.  Mason,  3  Md.  Ch. 
186;  McClellan  v.  Kennedy,  8  Md.  230;  Cockcy  v.  Milne's  Lessee,  16 
Md.  200;  Cecil  v.  Cecil,  19  Md.  72;  Miller  v.  Johnson.  27  Md.  6; 
Bank  v.  Inloes,  7  Md.  380;  Syester  v.  Bracer,  27  Md.  288. 

A  decree  is  not  admissible  as  against  a  stranger  to  prove  the  facts 
upon  which  it  was  founded.     Parr  v.  State,  71  Md.  220. 

One  in  possession  of  land  cannot  be  dispossessed  under  a  decree  in 
an  action  to  which  he  was  not  a  party.  Tongue  v.  Morton,  6  Har. 
&  J.  21;  Frazer  v.  Palmer,  2  Har.  &  G.  469;  Oliver  v.  Caton,  2  Md. 
Ch.  297. 

A  judgment  does  not  conclude  a  party  to  it  as  against  a  stranger. 
Heaver  v.  Lanahan,  74  Md.  493. 

A  judgment  is  not  an  estoppel  against  a  party  if  it  is  not  such 
an  estoppel  against  the  one  seeking  to  take  advantage  of  it.  Gro- 
shon  v.  Thomas,  20  Md.  231. 

Pennsylvania. 

Authorities. —  A  judgment  is  not  binding  on  strangers  to  it.  Rose 
v.  Klinger,  8  W.  &  S.  178;  Building  Assn.  v.  O'Connor,  3  Phila. 
453;  Kanffelt  v.  Leber,  9  W.  &  S.  93;  Davidson  v.  Barclay,  63  Pa. 
406.  Even  though  the  same  title  be  in  dispute.  Timbers  v.  Katz, 
0   W.  &  S.  290. 


238  A  DIGEST  OF  [Paet  I. 

A  decree  declaring  a  mortgage  a  first  lien  is  not  binding  on  a 
prior  lienor  who  was  not  a  party  or  privy  to  the  decree.  Railway 
Co.  v.  Marshall,  85  Pa.   187. 

Where  one  recovers  judgment  against  a  railroad  company  for  a 
fire  caused  by  its  negligence,  such  judgment  is  not  conclusive  as 
between  the  party  getting  it  and  an  insurance  company.  /Etna  Ins. 
Co.  v.  Confer,  158  Pa.  598. 

Foreign  attachment  is  not  such  a  proceeding  in  rem  that  the  judg- 
ment will  conclude  strangers  in  the  matter  of  the  title  to  the  prop- 
erty attached.     Megee  v.  Beirne,  39  Pa.  50. 


Article  43. 
effect  of  judgment  not  pleaded  as  an  estoppel. 

If  a  judgment  is  not  pleaded  by  way  of  estoppel  it  is  as 
between  parties  and  privies  deemed  to  be  a  relevant  fact, 
whenever  any  matter,  which  was,  or  might  have  been  decided 
in  the  action  in  which  it  was  given,  is  in  issue,  or  is  or  is 
deemed  to  be  relevant  to  the  issue,  in  any  subsequent  pro- 
ceeding. 

Such  a  judgment  is  conclusive  proof  of  the  facts  which 
it  decides,  or  might  have  decided,  if  the  party  who  gives 
evidence  of  it  had  no  opportunity  of  pleading  it  as  an 
estoppel. 

Illustrations. 

(a)  A  sues  B  for  deepening  the  channel  of  a  stream,  whereby  the 
flow  of  water  to  As  mill  was  diminished. 

A  verdict  recovered  by  B  in  a  previous  action  for  substantially  the 
same  cause,  and  which  might  have  been  pleaded  as  an  estoppel,  is 
deemed  to  be  relevant,  but  not  conclusive  in  B's  favour.2^ 

(b)  A  sues  B  for  breaking  and  entering  A's  land,  and  building 

23  Vooght  v.  Winch,  1819,  2  B.  &  Aid.  662;  and  see  Feversham  v. 
Emerson,  1855,  11  Ex.  391. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  239 

thereon  a  wall  and  a  cornice.    B  pleads  that  the  land  was  his,  and  ob- 
tains a  verdict  in  his  favour  on  that  plea. 

Afterwards  B's  devisee  sues  A's  wife  (who  on  the  trial  admitted  that 
she  claimed  through  A)  for  pulling  down  the  wall  and  cornice.  As  the 
first  judgment  could  not  be  pleaded  as  an  estoppel  (the  wife's  right  not 
appearing  on  the  pleadings),  it  is  conclusive  in  B's  favour  that  the 
land  was  his.24 

AMERICAN  NOTE. 
General. 

Authorities. —  9  Encyclopaedia  of  Pleading  and  Practice,  pp.  613, 
618;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  531,  and  notes;  Per- 
kins v.  Walker,  19  Vt.  144;   Gray  v.  Pingry,  17  Vt.  424. 

It  is  generally  held  in  this  country  that  the  judgment  is  con- 
clusive, whether  pleaded  or  not,  and  whether  or  not  there  was  an 
opportunity  to  plead  it.  1  Greenleaf  on  Evidence  (15th  ed.),  sec. 
531,  and  notes;  Gray  v.  Pingry,  17  Vt.  419;  Whitney  v.  Clarendon, 
18  Vt.  252;  Mussey  v.  White,  58  Vt.  45;  Perkins  v.  Walker,  19 
Vt.  114;  Chamberlain  v.  Carball,  26  N.  H.  540;  Gove  v.  Lyford,  44 
N.  H.  528;  Blain  v.  Blain,  45  Vt.  538;  Whitney  v.  Bergcr,  78  Lie. 
287 ;  Walker  v.  Chase,  53  Me.  258 ;  Westcott  v.  Edmunds,  68  Pa.  St. 
34;  Trayhem  v.  Colburn,  66  Md.  277;  So.  Pac.  R.  Co.  v.  U.  S.,  168 
U.  S.  1.    Even  if  a  foreign  judgment.    Whiting  v.  Berger,  78  Me.  287. 

No  opportunity  to  plead. —  King  v.  Chase,  15  N.  H.  9,  41  Am.  Dec. 
675;  Chase  v.  Walker,  26  Me.  555;  Isaacs  v.  Clark,  12  Vt.  692; 
Perkins  v.  Walker,  19  Vt.  144;  Dame  v.  Wingate,  12  N.  H.  291; 
Morgan  v.  Burr,  58  N.  H.  470;  Shelton  v.  Alcox,  11  Conn.  240;  Bell 
v.  Raymond,  18  Conn.  97;  Howard  v.  Mitchell,  14  Mass.  242;  Adams 
v.  Barnes,  17  Mass.  365;  Sprague  v.  Waite,  19  Pick.  (Mass.)  455; 
Meiss  v.  Gill,  44  0.  St.  253 ;  Wixson  v.  Devine,  67  Cal.  341 ;  Porter  v. 
Leache,  56  Mich.  40 ;  Howe  v.  Minn.  Mills  Co.,  44  Minn.  460 ;  Porter 
v.  Leache,  56  Mich.  40. 

A  judgment  may  be  placed  in  evidence  without  being  specially 
pleaded  if  it  is  desired  to  be  used  as  evidence  of  a  material  fact  in 
issue;  not,  however,  as  an  estoppel  or  bar  to  the  action.  Krikeler  v. 
Ritter,  62  N.  Y.  372. 

24  Whitaker  v.  Jackson.  1864,  2  H.  &  C.  at  p.  926.  This  had  previ- 
ously been  doubt  ed.    See  2  Ph.  Ev.  24.  n.  4. 


240  A  DIGEST  OF  [Part  I. 

New  Jersey. 

Pleading. —  Pleading  a  judgment  as  a  bar.  Reeves  v.  Townsend, 
22  N.  J.  L.  396. 

Evidence. —  A  judgment  is  admissible  in  evidence.  Dean  v. 
Thatcher,  32  N.  J.  L.  470. 

A  judgment  maj'  be  given  in  evidence  if  there  was  no  chance  to 
plead  it.     Ward  v.  Ward,  22  N.  J.  L.  699. 

Maryland. 

Authorities. —  A  judgment  need  not  be  pleaded  by  way  of  estoppel. 
Beall  v.  Pearre,  12  Md.  550. 

It  is  generally  held  in  this  country  that  the  judgment  is  conclusive, 
whether  pleaded  or  not,  and  whether  or  not  there  was  an  opportunity 
to  plead  it.     Trayhem  v.  Colbum,  66  Md.  277. 

Insufficient  pleading  of  a  former  judgment.  Brooke  v.  Gregg,  89 
Md.  234. 

A  judgment  is  not  matter  for  plea  in  abatement  but  in  bar.  Bank 
of  U.  8.  V.  Merchants'  Bank,  7  Gill,  415. 

Pennsylvania. 

A  judgment  of  a  competent  court  on  a  point  in  issue  is  a  bar  when 
pleaded  or  conclusive  when  given  in  evidence.  Hibshman  v.  Dulle- 
ban,  4  Watts,  183;  Westcott  v.  Edmunds,  68  Pa.  34;  Railroad  Co. 
v.  Malone,  85  Pa.  25. 

Verdict  of  a  jury  is  not  admissible  in  evidence  to  create  an  estoppel 
until  judgment  is  entered  thereon.  Dougherty  v.  Lehigh  C.  &  N. 
Co.,  202  Pa.  635. 

Article  44. 

judgments  generally  deemed  to  be  irrelevant  as 
between  strangers. 

Judgments  are  not  deemed  to  be  relevant  as  rendering 
probable  facts  which  may  be  inferred  from  their  existence, 
but  which  they  neither  state  nor  decide  — 

as  between  strangers ; 

as  between  parties  and  privies  in  suits  where  the  issue  is 
different  even  though  they  relate  to  the  same  occurrence  or 
subject-matter; 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  241 

or  in  favour  of  strangers  against  parties  or  privies. 
But  a  judgment  is  deemed  to  be  relevant  as  between 
strangers : 

(1)  if  it  is  an  admission,  or 

(2)  if  it  relates  to  a  matter  of  public  or  general  interest, 
so  as  to  be  a  statement  under  Article  30. 

Illustrations. 

(a)  The  question  is,  whether  A  has  sustained  loss  by  the  negligence 
of  B,  his  servant,  who  has  injured  C's  horse. 

A  judgment  recovered  by  C  against  A  for  the  injury,  though  con- 
clusive as  against  B,  as  to  the  fact  that  C  recovered  a  sum  of  money 
from  A,  is  deemed  to  be  irrelevant  to  the  question,  whether  this  was 
caused  by  B's  negligence.25 

( b )  The  question  whether  a  bill  of  exchange  is  forged  arises  in  an 
action  on  the  bill.  The  fact  that  A  was  convicted  of  forging  the  bill  is 
deemed  to  be  irrelevant.20 

( c)  A  collision  takes  place  between  two  ships  A  and  B,  each  of  which 
is  damaged  by  the  other. 

The  owner  of  A  sues  the  owner  of  B,  and  recovers  damages  on  the 
ground  that  the  collision  was  the  fault  of  B's  captain.  This  judg- 
ment is  not  conclusive  in  an  action  by  the  owner  of  B  against  the 
owner  of  A,  for  the  damage  done  to  B.2"  [Semble,  it  is  deemed  to  be 
irrelevant.]28 

(d)  A  is  prosecuted  and  convicted  as  a  principal  felon. 

B  is  afterwards  prosecuted  as  an  accessory  to  the  felony  committed 
by  A. 

The  judgment  against  A  is  deemed  to  be  irrelevant  as  against  B, 
though  A's  guilt  must  be  proved  as  against  B.29 

25  Green  v.  New  River  Company,  1792,  4  T.  R.  589.  (See  Article 
40,  Illustration  (a).) 

26  Per  Blackburn,  J.,  in  Castrique  v.  Imrie,  1870,  L.  R.  4  E.  &  I. 
App.  at  p.  434. 

27  The  Calypso,  1856,  1  Swab.  Ad.  28. 

28  On  the  general  principle  in  Duchess  of  Kingston's  Case,  1776,  2 
Smith's  L.  C.  713. 

29  Semble  from  R.  v.  Turner,  1832,  1  Moo.  C.  C.  347. 

16 


242  A  DIGEST  OF  [Part  I. 

(e)   A  sues  B,  a  carrier,  for  goods  delivered  by  A  to  B. 

A  judgment  recovered  by  B  against  a  person  to  whom  he  had  de- 
livered the  goods,  is  deemed  to  be  relevant  as  an  admission  by  B  that 
he  had  them.30 

(/")   A  sues  B  for  trespass  on  land. 

A  judgment,  convicting  A  for  a  nuisance  by  obstructing  a  highway 
on  the  place  said  to  have  been  trespassed  on  is  [at  least]  deemed  to  be 
relevant  to  the  question,  whether  the  place  was  a  public  highway  [and 
is  possibly  conclusive]. 31 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  522  et 
seq.;  Underhill  on  Evidence,  sec.  1506. 

Sustaining  text.     King  v.  Chase,  15  N.  H.  9,  41  Am.  Dec.  675. 

Bartlett  v.  Boston  Gas  Co.,  122  Mass.  209;  Burlen  v.  Shannon, 
99  Mass.  200,  96  Am.  Dec.  733;  Burlen  v.  Shannon,  14  Gray  (Mass.), 
433. 

A  judgment  against  one  of  several  joint-feasors  is  a  defense 
in  a  suit  against  the  others  only  if  satisfied.  Cleveland  v.  Bangor, 
87  Me.  259;  The  Beaconsfield,  158  U.  S.  303;  Leither  v.  Phil.  Traction 
Co.,  125  Pa.  St.  397;  Roodhouse  v.  Christian,  158  111.  137  ; Savage  v. 
Stevens,  128  Mass.  254. 

It  has  been  sometimes  held  that  sureties  on  official  bonds  are 
concluded  by  judgments  against  their  principals.  Tracy  v.  Good- 
win, 5  Allen  (Mass.),  409;  McMicken  v.  Com.,  58  Pa.  St.  213;  Stoval 
v.  Banks,  10  Wall.  583;  Nevitt  v.  Woodburn,  160  111.  203;  Norris  v. 
Mersereau,  74  Mich.  687  (prima  facie  evidence  only)  ;  Tute  v.  James, 
50  Vt.  124. 

A  judgment  against  certain  joint  contractors  constitutes  a  bar  to  a 
suit  against  the  other  if  they  were  within  the  jurisdiction.  Kingsley 
v.  Davis,  104  Mass.  178. 

A  judgment  against  one  of  several  persons,  jointly  and  severally 
liable  in  contract,  is  a  defense  in  a  suit  against  the  others  only 
if  satisfied.     Sawyer  v.  White,  19  Vt.  40. 

30  Tilly  v.  Cowling,  1701,  Buller,  N.  P.  242,  b. ;   1  Ld.  Raymd.  744. 
siPetrie  v.  Nuttall,  1856,  11  Ex.  569. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  243 

A  judgment  against  a  party  in  his  personal  capacity  is  not  bind- 
ing on  him  in  a  suit  wherein  he  appears  in  a  representative  capacity. 
Landers  v.  Arno,  65  Me.  26 ;  New  Haven  v.  Chidsey,  68  Conn.  397. 

Strangers. —  Grand  Trunk  R.  R.  Co.  v.  Latham,  63  Me.  177;  Bur- 
dick  v.  Norwich,  49  Conn.  225. 

A  judgment  against  an  indorser,  unsatisfied,  does  not  bar  an 
action  against  the  acceptor  or  maker.  Gilmore  v.  Carr,  2  Mass. 
171;  Railroad  Co.  v.  Nat.  Bank,  102  U.  S.  14. 

A  criminal  judgment  is  not  admissible  in  a  civil  suit  unless  it 
comes  within  the  exception  of  the  text.  State  v.  Bradnack,  69 
Conn.  212;  People  v.  Kenyon,  93  Mich.  19;  Corbley  v.  Wilson,  71  111. 
209. 

Issues  different. —  Norton  v.  Huxley,  13  Gray  (Mass.),  285:  Burlen 
v.  Shannon,  99  Mass.  200;  Coleman's  Appeal,  62  Pa.  St.  252;  Russell 
v.  Place,  94  U.  S.  606. 

One  cannot  avail  himself  of  a  judgment  in  his  own  favor  in  a 
suit  which  he  brings  as  an  assignee  of  a  cause  of  action  assigned  to 
him  after  the  rendition  of  the  judgment.  Fuller  v.  Metropolitan 
Life  Ins.  Co.,  68  Conn.  55. 

Admissions. —  Parsons  v.  Copeland,  33  Me.  370,  54  Am.  Dec.  628; 
Craig  v.  Carleton,  8  Shepl.  (Me.)  492;  Kellenberger  v.  Sturtevant, 
7  Cush.  (Mass.)  465;  Rudolph  v.  Landwerlen,  92  Ind.  34;  St.  Louis 
Ins.  Co.  v.  Cravens,  69  Mo.  72. 

Matter  of  public  interest. —  People  v.  Buckland,  13  Wend.  594. 


New  Jersey. 

Authorities. —  Kutzmeyer  v.  Ennis,  27  N.  J.  L.  371;  Newman  v. 
Fowler,  37  N.  J.  L.  89. 

A  judgment  as  to  a  thing  immaterial  to  the  issue  is  no  bar  in  a 
subsequent  action.     Munday  v.  Vail,  34  N.  J.  L.  418. 

Where  A  is  primarily  liable  and  B  has  agreed  to  indemnify  him, 
a  judgment  against  A  in  a  suit  of  which  B  had  notice  is  competent 
evidence  in  a  suit  by  A  against  B  on  the  contract  of  indemnity. 
Hoppaugh  v.  McGrath,  53  N.  J.  L.  81. 

Judgment  against  a  principal  not  conclusive  against  a  surety  as 
general  rule.    Ball  v.  Chancellor,  47  N.  J.  L.  125. 


244  A  DIGEST  OF  [Part  I. 

Maryland. 

A  contract  of  employment  for  one  year  at  $50  per  week  is  an 
entire  contract.  Upon  a  wrongful  discharge  the  employee  has  only 
one  action  for  damages.  A  judgment  for  one  week's  wages  for  the 
week  succeeding  the  discharge  bars  any  action  for  further  damages. 
Ohnstead  v.  Bach,  78  Md.  132. 

Pennsylvania. 

Strangers. —  Timbers  v.  Katz,  6  W.  &  S.  290;  Sample  v.  Coulson, 
9  W.  &  S.  62;  Brookville  v.  Arthurs,  130  Pa.  501. 

A  judgment  against  one  of  several  joint-feasors  is  a  defense  in  a 
suit  against  the  others  only  if  satisfied.  Leither  v.  Philadelphia 
Traction  Co.,  125  Pa.  397. 

A  judgment  against  a  principal  is  not  generally  conclusive  against 
a  surety.     Giltinan  v.  Strong,  G4  Pa.  242. 

It  has  been  sometimes  held  that  sureties  on  official  bonds  are  con- 
eluded  by  judgments  against  their  principals.  McMicken  v.  Com., 
58  Pa.  213. 

In  an  action  on  a  bill  of  exchange,  the  fact  that  a  person  was  con- 
victed of  forging  the  bill  is  not  admissible.  Earger  v.  Thomas,  44 
Pa.  128. 

Issues  different. —  Coleman's  Appeal,  62  Pa.  252. 

A  judgment  is  not  conclusive  as  to  matters  only  to  be  argu- 
mentatively  inferred.  Lentz  v.  Wallace,  17  Pa.  412;  Schwan  V. 
Kelley,  173  Pa.  65. 

Article  45. 
judgments  conclusive  in  favour  of  judge. 
When  any  action  is  brought  against  any  person  for  any- 
thing done  by  him  in  a  judicial  capacity,  the  judgment  deli- 
vered, and  the  proceedings  antecedent  thereto,  are  conclusive 
proof  of  the  facts  therein  stated,  whether  they  are  or  are  not 
necessary  to  give  the  defendant  jurisdiction,  if,  assuming 
them  to  be  true,  they  show  that  he  had  jurisdiction. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  245 

Illustration. 

A  sues  B  (a  justice  of  the  peace)  for  taking  from  him  a  vessel  and 
500  lbs.  of  gunpowder  thereon.  B  produces  a  conviction  before  him- 
self of  A  for  having  gunpowder  in  a  boat  on  the  Thames  (against 
2  Geo.  III.  c.  28). 

The  conviction  is  conclusive  proof  for  B,  that  the  thing  called  a  boat 
was  a  boat.32 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  813. 

Piper  v.  Pearson,  2  Gray  (Mass.),  120.  See  Ex  parte  Sternes,  77 
Cal.  156;  Otis  v.  The  Rio  Grande,  1  Woods  (U.  S.),  279.  See  Ear- 
man  v.  Brotherson,  1  Den.  537;  People  v.  Collins,  19  Wend.  56,  62. 

Generally  the  decision  of  a  court  as  to  a  fact  which  is  required  to 
be  ascertained  and  settled  before  jurisdiction  of  a  case  can  be  taken 
is  final  and  protects  parties  acting  thereunder,  until  directly  reversed 
or  vacated.  Colton  v.  Beardsley,  38  Barb.  29,  51;  Dyckman  v.  Mayor 
of  New  York,  5  N.  Y.  434,  440.  See  Austin  v.  Vrooman,  128  N.  Y. 
229;  Bolton  v.  Shriever,  135  N.  Y.  65. 

If,  however,  a  court  tries  to  acquire  jurisdiction  by  assuming  by 
a  decision  that  a  fact,  which  must  actually  exist  to  give  jurisdiction, 
does  exist,  its  proceeding  is  null  and  subject  to  collateral  attack. 
Roderigas  v.  East  River  Sav.  Inst.,  63  N.  Y.  460,  464;  People  v.  Bd. 
of  Health,  140  N.  Y.  1;  Miller  v.  Amsterdam,  149  N.  Y.  288.  See 
McLean  v.  Jephson,  123  N.  Y.  142. 

Maryland. 

Authorities. —  An  inferior  judge,  acting  within  his  jurisdiction, 
cannot  be  made  a  trespasser  for  enforcing  his  judgment  even  though 
it  is  erroneous.  Deal  v.  Harris,  8  Md.  40.  See  also  Hiss  v.  State.  24 
Md.  556. 

MBrittain  v.  Kinnaird,  1819,  1  Brod.  &  Bing.  432. 


240  A  DIGEST  OF  [Part  I 


Article  46. 
fraud,  collusion,  or  want  of  jurisdiction  mat  be 

PROVED. 

Whenever  any  judgment  is  offered  as  evidence  under 
any  of  the  articles  hereinbefore  contained,  the  party  against 
whom  it  is  so  offered  may  prove  that  the  Court  which  gave 
it  had  no  jurisdiction,  or  that  it  has  been  reversed,  or,  if  he 
Hs  a  stranger  to  it,  that  it  was  obtained  by  any  fraud  or 
collusion,  to  which  neither  he  nor  any  person  to  whom  he 
is  privy  was  a  party.33 

If  an  action  is  brought  in  an  English  Court  to  enforce  the 
judgment  of  a  foreign  Court,  and  probably  if  an  action  is 
brought  in  an  English  Court  to  enforce  the  judgment  of 
another  English  Court,  any  such  matter  as  aforesaid  may  be 
proved  by  the  defendant,  even  if  the  matter  alleged  as  fraud 
was  alleged  by  way  of  defence  in  the  foreign  Court  and  was 
not  believed  by  them  to  exist.34 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  797 ;  17  Am.  &  Eng. 
Encyclopaedia  of  Law   (2d  ed.),  pp.  S4S,  1047  et  seq. 

A  judgment  at  law  or  decree  in  equity  of  a  court  having  juris- 
diction is  conclusive  between  the  parties  to  it  and  their  privies, 
upon  every  material  fact  in  issue,  and  cannot  be  collaterally  im- 
peached. Wight  v.  Mott,  Kirby  (Conn.),  154;  Peck  v.  Woodbridge, 
8  Day  (Conn.),  36;  Canaan  v.  Greenwoods  Turnpike  Co.,  1  Conn.  6; 

33  Cases  collected  in  2  Taylor,  ss.  1715,  1716,  1721.  See,  too,  2  Ph. 
Ev.  2.T.  70.  and  Ochsenbein  v.  Papelier,  1873,  8  Ch.  App.  695. 

34  Aboulnff  v.  Oppcnheimer,  1882,  10  Q.  B.  D.  295. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  247 

Willey  v.  Paulk,  6  Conn.  75;  Griswold  v.  Bigelow,  6  Conn.  264; 
Sears  v.  Terry,  26  Conn.  280,  282;  McLoud  v.  SeZ&i/,  10  Conn. 
396;  Eolcomb  v.  Phelps,  16  Conn.  131;  Ormsbee  v.  Davis,  6  Conn. 
576;   Huntington  v.  Birch,  12  Conn.  152. 

Want  of  jurisdiction. —  Any  one  may  attack  a  judgment  for  want 
of  jurisdiction.  Love  joy  v.  Albce,  33  Me.  414,  54  Am.  Dec.  630; 
Penobscot  It.  R.  Co.  v.  Watson,  52  Me.  456;  Buffum  v.  Ramsdell,  55 
Me.  252,  92  Am.  Dec.  5S9;  Smith  v.  Knoiclton,  11  N.  H.  19;  Kit- 
tredge  v.  Emerson,  15  N.  H.  227;  WiZ&tw  v.  Ab6o£,  60  N.  H.  40; 
Eastman  v.  Dearborn,  63  N.  H.  364;  State  v.  Wakefield,  60  Vt. 
010;  Barrett  v.  Crane,  16  Vt.  246;  Vaughn  v.  Congdon,  56  Vt. 
Ill,  4S  Am.  Rep.  758;  Ada»is  v.  Cowles,  95  Mo.  501;  Sandwich  Co. 
v.  Bar?,  56  Minn.  390;  J&iZ«  v.  City  Ca6  Co.,  79  Cal.  188;  FeopZe  v. 
-S'cetye,  146  111.  189;  Wall  v.  IFaH,  123  Pa.  545.  See  McClanahan 
v.  IFesr,  100  Mo.  309. 

A  stranger  can  attack  a  judgment  collaterally  for  want  of  juris- 
diction.    Bitffum  v.  Ramsdell,  55  Me.  252. 

Unless  one  has  been  served  or  made  appearance  he  is  a  stranger. 
Safford  v.  Weare,  142  Mass.  231;  Needham  v.  Thayer,  147  Mass.  536; 
Eliot  v.  McCormick,  144  Mass.  10;  Martin  v.  Kittredge,  144  Mass. 
13;  Fa«  .tfiyer  v.  i2iZei/,  140  Mass.  488.  See  also  Sumner  v.  Parker, 
7  Mass.  78. 

A  domestic  judgment  may  be  attacked  collaterally  for  lack  of 
jurisdiction.     .FaW  River  v.  Riley,  140  Mass.  488. 

In  some  States  a  justice  court  is  a  court  of  record.  Hendrick 
v.  Whittemore,  105  Mass.  23,  28. 

In  others  it  is  an  inferior  court.  Fahcy  v.  Mottee,  67  Md.  250; 
Clayborn  v.  Tompkins,  141  Ind.  19. 

Full  jurisdiction  must  embrace  the  parties,  the  subject-matter, 
and  the  process.     Scars  v.  Terry,  26  Conn.  280. 

The  recitals  of  the  judgment  of  a  Superior  Court  are  conclusive 
upon  the  parties  in  considering  jurisdictional  questions.  Blaisdell 
v.  Pray,  G8  Me.  269,  272;  Culver's  Appeal,  48  Conn.  165,  173;  Coit 
V.  Haven,  30  Conn.  190;  Finneran  v.  Leonard,  7  Allen   (Mass.).  54. 

A  probate  court  is  not  a  court  of  general  jurisdiction.  Fowle  v. 
Coe,  63  Me.  248;  People's  Savings  Bank  v.  TFiZcoa;,  15  R.  I-  258 ; 
Sears  v.  Terrt/,  26  Conn.  273.  See  Smith  v.  WiWman,  178  Pa.  245, 
Compare  Macey  v.  Stark,  116  Mo.  481;  Clark  v.  Costello,  59  N.  J. 
L.  234;  State  v.  Mobile,  etc.,  R.  Co.,  108  Ala.  29,  30. 


248  A  DIGEST  OF  [Pabt  I. 

The  jurisdiction  of  inferior  courts  is  not  presumed,  but  must  be 
made  to  appear.  Coit  v.  Haven,  30  Conn.  190;  Galpin  v.  Page,  18 
Wall.  350;  Fahey  v.  Mottee,  67  Md.  250;  Smith  v.  Clausmeier,  136 
Ind.  120;  State  v.  Mobile,  etc.,  It.  Co.,  108  Ala.  31;  Richardson  v. 
Seevers,  84  Va.  259. 

The  jurisdiction  of  courts  of  limited  and  inferior  jurisdiction 
can  be  collaterally  attacked,  and  if  the  want  of  jurisdiction  in  fact 
exists,  the  judgment  is  an  absolute  nullity.  Culver's  Appeal,  48 
Conn.  173. 

Fraud. —  A  party  cannot  attack  a  judgment  collaterally  for  fraud 
aliunde  the  record;  a  stranger  can.  Davis  v.  Davis,  61  Me.  395; 
Granger  v.  Clark,  22  Me.  128;  Smith  v.  Abbott,  40  Me.  442;  Siden- 
sparkcr  v.  Sidensparker,  52  Me.  481,  83  Am.  Dec.  527;  Blanchard 
v.  Webster,  62  N.  H.  468;  Great  Falls  Mfg.  Co.  v.  Worster,  45  N. 
H.  110;  Atkinson  v.  Allen,  12  Vt.  620,  36  Am.  Dec.  361;  Ogle  v. 
Baker,  137  Pa.  378;  In  re  Burdick,  162  111.  48;  Greene  v.  Greene,  2 
Gray  (Mass.),  361,  61  Am.  Dec.  454;  Homer  v.  Fish,  1  Pick.  (Mass.) 
435.  11  Am.  Dec.  218;  M'Rae  v.  Mattoon,  13  Pick.  (Mass.)  57; 
Downs  v.  Fuller,  2  Mete.  (Mass.)  135,  35  Am.  Dec.  393;  Vose  Y. 
Morton,  4  Cush.   (Mass.)   27. 

Reversal. —  The  fact  that  the  court  which  gave  judgment  has  been 
reversed  may  be  proved.     Smith  v.  Frankfield,  77  N.  Y.  414. 

But  during  the  pendency  of  an  appeal  the  judgment  continues  to 
have  the  effect  of  an  estoppel.     Parkhurst  v.  Berdell,  110  N.  Y.  386. 

New  Jersey. 

Lack  of  jurisdiction. —  A  judgment  may  be  impeached  collaterally 
for  lack  of  jurisdiction.  Hess  v.  Cole,  23  N.  J.  L.  116  (of  the  per- 
son) ;  McCahill  v.  Life  Assur.  Soc.,  26  N.  J.  Eq.  531. 

Though  a  judgment  is  not  admissible  to  prove  a  fact  over  which 
the  court  had  no  jurisdiction,  yet  it  is  admissible  in  so  far  as  it 
decides  questions  over  which  the  court  had  jurisdiction.  Williamson 
v.  Gordon,  Spen.  77.     See  Davis  v.  Headley,  22  N.  J.  Eq.  115. 

Lack  of  jurisdiction  may  be  proved.  Bray  v.  Neill,  21  N.  J.  Eq. 
343. 

Fraud. —  A  stranger  may  attack  a  judgment  collaterally  for  fraud. 
Yanderveere  v.  Gaston,  24  N.  J.  L.  818. 

Fraud  in  securing  a  judgment,  when  a  party  was  not  able  to  de- 
fend in  the  original  suit  on  that  ground  and  was  without  fault  him- 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  249 

self,  will  justify  equity  in  setting  aside  the  judgment.  Doughty  v. 
Doughty,  27  N.  J.  Eq.  315. 

Grounds  of  collateral  attack. —  Defective  service  of  process  is  not 
ground  for  collateral  attack.     Dickinson  v.  Trenton,  33  N.  J.  Eq.  G3. 

Judgment  against  A  in  a  court  of  general  jurisdiction  in  which  he 
was  never  served  with  process  but  in  which  an  attorney  appeared  for 
him  without  authority  cannot  be  impeached  by  him  collaterally  but 
may  be  in  a  direct  proceeding.  Mutual  Life  Ins.  Co.  v.  Pinner,  43 
N.  J.  Eq.  52. 

A  judgment  cannot  be  collaterally  attacked  by  showing  that  it  was 
based  on  a  gambling  contract.     McCanless  v.  Smith,  51  N.  J.  Eq.  505. 

A  judgment  which  is  relevant  as  evidence  cannot  be  objected  to  on 
the  ground  of  irregularity  or  error.  Stothoff  v.  Dunham,  4  Harr. 
181;  Lutes  v.  Alpaugh,  3  Zab.  165;  Hendrickson  v.  Norcross,  19 
N.  J.  Eq.  417;  Diehl  v.  Page,  3  N.  J.  Eq.  143;  Obert  v.  Hammel,  18 
N.  J.  L.  73. 

Decree  may  be  attacked  collaterally  on  the  ground  that  it  was  a 
usurpation.  Young  v.  Rathbone,  16  N.  J.  Eq.  224;  Munday  v.  Vail, 
34  N.  J.  L.  418. 

Orphans'  Court  decree. —  Orphans'  Court  is  one  of  superior  juris- 
diction in  New  Jersey.  Clark  v.  Costello,  59  N.  J.  L.  234;  Den.  v. 
Hammel,  3  Harr.  73;  Den.  v.  O'Hanlon,  1  Zab.  582;  Hess  v.  Cole,  3 
Zab.  116;  Quidort's  Admr.  v.  Pergeaux,  18  N.  J.  Eq.  472;  Plume  v. 
Howard  Sav.  Inst.,  46  N.  J.  L.  211. 

Decree  of  Orphans'  Court  that  due  notice  was  given  of  a  final 
settlement  is  conclusive.     Boulton  v.  Scott,  3  N.  J.  Eq.  231. 

Orphans'  Court  decree  on  the  probate  of  a  will  is  not  admissible 
to  prove  invalid  a  will  of  real  estate  in  an  action  of  ejectment. 
Den.  v.  Ayres,  1  Green,  153;  Cozens  v.  Colson,  Pen.  877;  Hazen  v. 
Tillman,  5  N.  J.  Eq.  363. 

Miscellaneous. —  A  judgment  is  conclusive  even  though  erroneous. 
Manley  v.  Mickle,  53  N.  J.  Eq.  155. 

Judgment  in  a  court  of  law  is  conclusive  of  the  fact  in  a  court  of 
equity.     Phillips  v.  Pullen,  45  N.  J.  Eq.  830. 

Judgment  of  a  justice  court  conclusive.  Van  Doren  v.  Horton, 
25  N.  J.  L.  205. 

The  verity  of  the  record  of  a  judgment  cannot  be  attacked  by 
proving  the  minutes  of  the  court.    Den.  v.  Doicnam,  1  Green,  135. 


250  A  DIGEST  OF  [Part  I. 

Maryland. 

Lack  of  jurisdiction. —  A  judgment  may  be  attacked  collaterally 
for  lack  of  jurisdiction.     Baltimore  v.  Porter,  18  Md.  284. 

The  jurisdiction  of  inferior  courts  is  not  presumed,  but  must  be 
made  to  appear.     Fahey  v.  Mottee,  67  Md.  250. 

A  decree  of  a  court  of  equity  cannot  be  impeached  collaterally  in 
a  court  of  law  when  there  was  jurisdiction.  Gardiner  v.  Miles,  5 
Gill,  94. 

Judgment  of  Orphans"  Court  is  conclusive  as  to  matters  within  its 
jurisdiction.     Bhultz  v.  Houck,  29  Md.  24. 

Fraud  and  error. —  A  judgment  cannot  be  attacked  collaterally  for 
frand  by  the  parties  or  their  privies.     Taylor  v.  State,  73  Md.  208. 

The  judgment  of  a  court  having  jurisdiction  cannot  be  attacked 
for  mere  irregularity.     Long  v.  Long,  62  Md.  33. 

A  judgment  cannot  be  impeached  collaterally  for  mere  error. 
Gordon  v.  Baltimore,  5  Gill,  231 ;  Barrick  v.  Horner,  78  Md.  253. 

Judgment  reversed. —  A  reversed  judgment  is  no  evidence.  Rich- 
ardson v.  Parsons,  1  H.  &  J.  253. 

Pennsylvania. 

Want  of  jurisdiction. —  Any  one  may  attack  a  judgment  for  want 
of  jurisdiction.     Wall  v.  Wall,  123  Pa.  545. 

Want  of  jurisdiction  may  be  shown  in  a  collateral  action  to  im- 
peach a  judgment.     Forster's  Estate,  2  Lane.  L.  Rev.  206. 

A  void  judgment  concludes  no  one.     Caldwell  v.  Walters,  18  Pa.  79. 

A  decree  on  a  rule  to  show  cause  why  a  judgment  should  not  be 
set  aside  on  the  ground  of  fraud  is  conclusive.  Haneman  v.  Pile, 
161  Pa.  599;  Heilman  v.  Kroh,  155  Pa.  1. 

Character  of  the  court. —  Judgment  of  a  court  of  probate  is  con- 
clusive as  to  matters  within  its  jurisdiction.  Vensel  V.  Coiner,  31 
Leg.  Int.  373.     See  Smith  v.  Wildman,  178  Pa,  245. 

A  decree  of  the  Orphans'  Court  as  to  matters  within  its  jurisdic- 
tion is  as  conclusive  as  that  of  other  courts.  McPherson  v.  Cunliff, 
11  S.  &  R.  422;  Painter  v.  Henderson,  7  Pa.  48;  Lockhart  v.  John, 
7  Pa.  137;  Torrance  v.  Torrance,  53  Pa.  505;  Brooks'  Estate,  8  Pa. 
Co.  Ct.  514;  H err  v.  Herr,  5  Pa.  428. 

Judgments  of  a  court  of  merely  statutory  jurisdiction  are  just  as 
conclusive  as  those  of  other  courts.     Billings  v.  Russell,  23  Pa.  189. 

Fraud. —  A  party  cannot  attack  a  judgment  collaterally  for  fraud 
aliunde  the  record;  a  stranger  can.     Ogle  v.  Baker,  137  Pa.  378. 


Chap.  IV. J  THE  LAW  OF  EVIDENCE.  251 

A  judgment  may  be  attacked  collaterally  by  a  stranger  for  fraud 
or  collusion.  Sager  v.  Mead,  164  Pa.  125;  Rowland's  Estate,  1  Pa. 
L.  J.  312;  Phelps  v.  Benson,  161  Pa.  418;  Appeal  of  McNaughton, 
101  Pa.  550;  Woodward  v.  Schmitt,  5  Phila.  152. 

Creditors  may  attack  a  judgment  collaterally  for  fraud  or  collu- 
sion. Watson  v.  Willard,  9  Pa.  89;  Appeal  of  Thompson,  57  Pa.  175; 
Appeal  of  Nat.  Bank,  85  Pa.  528;  Appeal  of  McNaughton,  101  Pa. 
550;  Appeal  of  Meckley,  102  Pa.  536. 

Mere  error  or  irregularity. —  A  judgment  is  conclusive  even  though 
erroneous.  Gratz  v.  Bank,  17  S.  &  R.  278;  Myers  v.  Clark,  3  W.  &  S. 
535. 

A  judgment  of  a  court  with  jurisdiction  cannot  be  attacked  col- 
laterally for  mere  irregularity.  Lewis  v.  Smith,  2  S.  &  R.  142; 
Cyphert  v.  McClune,  22  Pa.   195;   Yaple  v.  Titus,  41   Pa.   195. 

A  judgment  cannot  be  collaterally  attacked  on  the  ground  of  de- 
fective service.  Sloan  v.  McKinstry,  18  Pa.  120;  Cockley  v.  Rehr, 
12  Pa.  Co.  Ct.  343. 

A  decree  of  distribution  of  the  Orphans'  Court  cannot  be  col- 
laterally attacked  by  showing  want  of  actual  notice.  Ferguson  v. 
Yard,  164  Pa.  586. 

A  judgment  cannot  be  attacked  collaterally  on  the  ground  that  it 
was  rendered  against  one  after  his  death.  Yaple  v.  Titus,  41  Pa. 
195;  Carr  v.  Townsend,  63  Pa.  202;  Murray  v.  Weigle,  118  Pa.  159. 

Article  47. 

foreign  judgments. 

The  provisions  of  Articles  40-46  apply  to  such  of  the 

judgments  of  Courts  of  foreign  countries  as  can  by  law  be 

enforced  in  this  country,  and  so  far  as  they  can  be  so 

enforced.35 

35  The  cases  on  this  subject  are  collected  in  the  note  on  the  Duchess 
of  Kingston's  Case,  2  Smith's  L.  C.  765-800.  A  list  of  the  cases  will 
be  found  in  Roscoe's  N.  P.  203-205.  The  last  leading  cases  on  the 
subject  are  Goddard  v.  Gray,  L.  R.  6  Q.  B.  139,  and  Castrique  v.  Imrie, 
1870,  L.  R.  4  H.  L.  414.  See.  too,  Schisby  v.  Westenholz,  1870,  L.  R. 
6  Q.  B.  155;  Rousillon  v.  Rousillon,  1880,  14  Ch.  Div.  at  p.  370; 
Novion  v.  Freeman,  1889,  15  App.  Ca.  1;  and  Sirdar  Gurdyal  Singh 
v.  Faridkote,  [1894],  A.  C.  670. 


252  A  DIGEST  OF  [Part  I. 

AMERICAN  NOTE. 

General. 

Authorities. —  2  Wharton  on  Evidence,  sec.  802;  13  Am.  &  Eng. 
Encyclopaedia  of  Law,  p.  977  et  seq.;  Hilton  v.  Guyot,  159  U.  S.  113, 
206,  207;   Fisher,  Brown  &  Go.  v.  Fielding,  G7  Conn.  91. 

Full  faith  and  credit  are  to  be  given  the  judgments  of  sister 
States.    U.  S.  Const.,  art.  4,  sec.  1. 

They  are  to  have  the  same  faith  and  credit  as  they  would  have  in 
the  State  of  their  rendition.  U.  S.  Rev.  Stat.,  sec.  905;  Huntington 
v.  Attrill,  146  U.  S.  657;  Dow  v.  Blake,  148  111.  76;  Fairchild  v. 
Fairchild,  53  N.  J.  Eq.  678;  Harrington  v.  Harrington,  154  Mass. 
517. 

The  judgments  of  sister  States  may  be  attacked  collaterally  for 
want  of  jurisdiction  whatever  may  be  the  jurisdictional  averments 
of  the  record.  Gregory  v.  Gregory,  78  Me.  1S7  ;  Thompson  v.  Whit- 
man,  18  Wall.  457;  Graham  v.  Spencer,  14  Fed.  Rep.  603:  Price  v. 
Schoeffler,  161  Pa.  530;  Napton  v.  Leaton,  71  Mo.  358;  Pennywait 
v.  Foote,  27  O.  St.  600 ;  Greenzweig  v.  Sterlinger,  103  Cal.  278 ;  Oil- 
man v.  Gilman,  126  Mass.  26,  27. 

No  greater  effect  is  to  be  given  to  a  judgment  rendered  in  another 
country,  or  another  State  of  the  United  States,  in  a  suit  upon  it 
here,  than  it  would  have  where  rendered.  Wood  v.  Watkinson,  17 
Conn.  505,  508;   Stanton  v.  Embry,  46  Conn.  65,  595. 

The  judgment  of  a  State  court,  when  proved  in  the  manner  pro- 
vided by  law,  has  the  same  effect  in  every  other  State  as  in  the 
State  where  it  was  pronounced;  and  no  pleas,  which  would  not  be 
good  there,  can  be  pleaded  to  an  action  on  it  in  another  State. 
Warren  Mfg.  Co.  v.  Mtna  Ins.  Co.,  2  Paine,  508;  Bank  of  North 
America  v.  Wheeler,  28  Conn.  439. 

But  a  plea  showing  that  the  court  where  it  was  rendered  had  no 
jurisdiction  of  the  person  is  admissible.  Warren  Mfg.  Co.  v.  .Etna 
Ins.   Co.,  2  Paine    (U.  S.),  510,  515. 

The  recitals  of  foreign  judgments  are  prima  facie  evidence  only 
of  jurisdiction.     Wright  v.  Andrews,  130  Mass.  149. 

A  foreign  judgment  may  be  attacked  collaterally  for  lack  of 
jurisdiction.  Rothrock  v.  Dwelling-House  Ins.  Co.,  161  Mass.  423; 
Ritchie  v.  McMullen,  159  U.  S.  235;  McEwan  v.  Zimmer,  38  Mich. 
765;  Roth  v.  Roth,  104  111.  35;  Smith  v.  Grady,  68  Wis.  215. 


Chap.  IV.]  THE  LAW  OF  EVIDENCE.  253 

A  party  cannot  impeach  a  judgment  of  a  sister  State  collaterally 
for  fraud.     Mooney  v.  Hinds,  1G0  Mass.  467. 

Judgments  of  sister  States. —  The  judgments  of  sister  States  may 
be  attacked  collaterally  for  want  of  jurisdiction  whatever  may  be 
the  jurisdictional  averments.  Cross  v.  Cross,  108  N.  Y.  628.  As  for 
instance  for  fraud.  Stanton  v.  Crosby,  9  Hun,  370.  See  Davis  v. 
Cornne,  151  N.  Y.  172;  Hunt  v.  Hunt,  72  N.  Y.  217.  And  fraud  in 
procuring  a  judgment  may  be  claimed  as  an  equitable  defense  thereto. 
Dobson  v.  Pearce,  12  N.  Y.  156. 

But  judgments  cannot  be  attacked  on  the  merits  for  error  or 
irregularity.     Pringle  v.  Woodworth,  90  X.  Y.  502. 

A  judgment  by  default  rendered  in  another  State,  where  the  proc- 
ess was  served  by  publication  on  a  nonresident  or  foreign  corpora- 
tion and  an  attachment  of  property  recovered,  has  no  validity  as  a 
judgment  in  personam,  and  can  only  avail  to  reach  the  property 
attacked.  Fitzsimons  v.  Marks,  66  Barb.  333;  Ward  v.  Boyce,  152 
N.  Y.  191.     See  Durant  v.  Abendroth,  97  N.  Y.  132. 

Foreign  judgments. —  A  foreign  judgment,  although  regarded  as 
conclusive  upon  the  merits,  may  be  attacked  collaterally  for  want  of 
jurisdiction.  Shepard  v.  Wright,  113  N.  Y.  582;  Dunston  v.  Higgins, 
138  N.  Y.  70. 

New  Jersey. 

Judgments  in  Federal  Courts. —  Wittemore  v.  Malcomson,  9  N.  J. 
L.  J.  338. 

Judgments  of  sister  States. —  Bank  v.  Wallis,  59  N.  J.  L.  46;  Jar- 
dine  v.  Reichert,  39  N.  J.  L.  165;  Robert  v.  Hodges,  16  N.  J.  Eq. 
299. 

The  judgment  of  another  State  cannot  be  attacked  on  the  ground 
that  there  would  have  been  a  good  defense  had  the  action  been 
brought  in  New  Jersey.     McCanless  v.  Smith,  51  X.  J.  Eq.  505. 

They  are  to  have  the  same  faith  and  credit  as  they  would  have  in 
the  State  of  their  rendition.  Fairchild  v.  Fairchild,  53  N.  J.  Eq. 
678. 

Want  of  jurisdiction  over  the  person  may  be  shown.  Ward  v. 
Price,  25  N.  J.  L.  225. 

Judgment  in  a  sister  State  may  be  impeached  collaterally  for  lack 
of  jurisdiction  even  though  the  record  contains  recitals  showing 
jurisdiction.     Royal  Arcanum  v.  Carley,  52  N.  J.  Eq.  642. 


254  A  DIGEST  OF  [J'ahtI. 

One  not  a  party  to  a  suit  in  a  sister  State  is  not  bound  by  the 
judgment.     Chew  v.  Brumagim,  21  N.  J.  Eq.  520. 

An  order  of  removal  of  a  pauper  entered  by  justices  of  another 
State  is  conclusive.    Elizabetlt,  v.  Westfield,  2  Hal.  439. 

Judicial  proceeding  of  another  State  presumed  to  be  valid  and 
regular.     Royal  Arcanum  v.  Carley,  52  N.  J.  Eq.  642. 

A  judgment  in  a  sister  State  not  impeachable  on  the  merits  for 
error  or  irregularity.  National  Batik  v.  Wallis,  59  N.  J.  L.  46. 
See  Nichols  v.  Nichols,  25  N.  J.  Eq.  60. 

A  judgment  of  a  sister  State  will  not  be  enforced  if  it  shows 
fraud  and  imposition  on  the  face  of  it.  Davis  v.  Headley,  22  N.  J. 
Eq.   115. 

Comity  of  States. —  If  the  jurisdiction  assumed  by  a  foreign 
court  is  unreasonable,  contrary  to  natural  justice,  and  the  principles 
of  international  law,  comity  does  not  require  the  judgment  to  be 
recognized  as  valid.     Moulin  v.  Insurance  Co.,  24  N.  J.  L.  222. 

Recitals  of  jurisdiction  of  the  person. —  A  recital  in  a  foreign 
judgment  that  the  defendant  was  summoned  or  appeared  may  be 
contradicted.     G.  S.  1895,  "  Evidence,"  17. 

Maryland. 

Judgments  in  a  sister  State. —  Harryman  v.  Roberts,  52  Md.  64; 
Duvall  v.  Pearson,  18  Md.  502;  Zimmerman  v.  Helser,  32  Md.  274. 

The  judgment  of  a  court  of  a  sister  State  is  as  conclusive  as  it 
would  be  in  the  State  where  rendered.  McCormick  v.  Deaver,  22 
Md.  187. 

The  judgment  of  a  court  of  a  sister  State  is  not  impeachable  on 
the  merits  for  mere  error  or  irregularity.  Harryman  v.  Roberts, 
52  Md.  64. 

Jurisdiction  may  be  inquired  into.  lYemwag  v.  Pawling,  5  G.  &  J. 
500;  Bank  of  United  States  v.  Merchants'  Batik,  7  Gill,  415. 

A  judgment  of  a  sister  State  may  be  attacked  for  want  of  juris- 
diction over  the  person.     Sewing  Mach.  Co.  v.  Radcliffe,  66  Md.  511. 

The  certificate  of  the  clerk  of  the  court  of'a  sister  State  is  suffi- 
cient authentication  of  the  record.     Case  v.  McGee,  8  Md.  9. 

Judgments  of  Federal  courts. —  Barney  v.  Patterson,  6  Har.  &  J. 
182. 

Judgments  of  courts  of  foreign  countries. —  Taylor  v.  Phelps.  1 
Har.  &  J.  492;  Owing s  v.  Nicholson,  4  Har.  &  J.  66;  Insurance  Co. 
v.  Bathurst,  5  G.  &  J.  159. 


CuAr.  IV.]  THE  LAW  OF  EVIDENCE.  255 

Statute. —  As  to  effect  of  foreign  judgments,  see  P.  G.  L.  1888, 
art.  35,  see.  37. 

Pennsylvania. 

Judgments  of  Federal  courts. —  Buchanan  v.  Biggs,  2  Yeates,  232; 
Re  Williamson,  26  Pa.  9. 

Judgments  of  sister  States. —  Guthrie  v.  Lowry,  84  Pa.  533;  Cur- 
ran  v.  Rowley,  2  Pa.  Co.  Ct.  539;  Bowersox  v.  Gitt,  12  Pa.  Co.  Ct.  81. 

The  judgments  of  sister  States  may  be  attacked  collaterally  for 
want  of  jurisdiction  whatever  may  be  the  jurisdictional  averments 
of  the  record.  Price  v.  Schaeffer,  161  Pa.  530.  See  Wefherill  v. 
Stillman,  65  Pa.  105. 

A  judgment  of  a  sister  State  is  not  entitled  to  full  faith  and 
credit  if  rendered  without  jurisdiction  of  the  person.  Railroad  Co. 
v.  Mercer,  11  Phila.  226;  Noble  v.  Oil  Co.,  79  Pa.  354;  Steel  v.  Smith, 
7  W.  &  S.  447. 

Judgments  of  courts  in  foreign  countries. —  Rapalje  v.  Emory,  2 
Dall.  51,  231;  Messier  v.  Amery,  1  Yeates,  533;  Pearson's  Estate.  6 
Pa.  Co.  Ct.  298;  Cheriot  v.  Foussat,  3  Binn.  220;  Snell  v.  Foussat, 
3  Binn.  239. 


256  A  DIGEST  OF  [Part  I. 


CHAPTER  V.* 

OPINIONS,   WHEN   RELEVANT  AND  WHEN    NOT. 

Article  48. 
opinion  generally  irrelevant. 

The  fact  that  any  person  is  of  opinion  that  a  fact  in  issue, 
or  relevant  or  deemed  to  be  relevant  to  the  issue,  does  or 
does  not  exist  is  deemed  to  be  irrelevant  to  the  existence  of 
such  fact,  except  in  the  cases  specified  in  this  chapter. 

Illustration. 
The  question  is.  whether  A,  a  deceased  testator,  was  sane  or  not 
when  he  made  his  will.    His  friends'  opinions  as  to  his  sanity,  as  ex- 
pressed by  the  letters  which  they  addressed  to  him  in  his  lifetime,  are 
deemed  to  be  irrelevant.! 

AMERICAN  NOTES. 

General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  509  et  seq.;  1  Green- 
leaf  on  Evidence  (15th  ed.).  sec.  440,  and  notes,  and  vol.  2,  sec.  371; 
12  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  sec.  488  et  seq.; 
Lawson  on  Expert  and  Opinion  Evidence,  chaps.  1-7 ;  Conn.  Ins.  Co. 
v.  Lathrop,  111  U.  S.  612,  618;  Graham  v.  Pa.  Co.,  139  Pa.  149; 
Coates  v.  Burlington,  etc.,  R.  Co.,  62  la.  486.  See  Cannon  v.  People, 
141  111.  270. 

Witnesses  may  give  their  opinions  in  connection  with  facts  when 
the  matter  cannot  otherwise  be  reproduced  or  made  palpable. 
Fayette  v.  Chesterville,  77  Me.  28,  52  Am.  Rep.  741 ;  Lester  v. 
Pittsford,  7  Vt.  158;  Morse  v.  Crawford,  17  Vt.  499;  Cram  v.  Cram, 
33  Vt.  15;  Bates  v.  Sharon,  45  Vt.  474;   Clifford  v.  Richardson,  18 

*  See  Note  XXIV. 
1  Wright  v.  Doe  d.  Tatham,  1837,  7  A.  &  E.  313. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  257 

Vt.  620;  Cavendish  v.  Troy,  41  Vt.  99;  Shelby  v.  Clagett,  46  O.  St. 
549;  State  v.  Rainsberger,  71  la.  746;  People  v.  Rolfe,  61  Cal.  540; 
Chicago  R.  Co.  v.  Fan  FZeefc,  143  111.  480;  Coo/c  v/  Ins.  Co.,  84  Mich. 
12. 

Where  the  circumstances  are  such  that  opinion  evidence  is  the 
best  that  can  be  had,  eye-witnesses  may  state  their  opinions.  Hardy 
v.  Merrill,  56  N.  H.  227,  241,  22  Am.  Rep.  441.  See,  also,  dissent- 
ing opinion  of  Doe,  J.,  in  State  v.  Pike,  49  N.  H.  40S ;  Vanderpool 
V.  Richardson,  52  Mich.  336;  State  v.  Stackhouse,  24  Kan.  445; 
Com.  v.  Sturtivant,  117  Mass.  122,  123,  19  Am.  Rep.  401. 

A  nonexpert  may  state  his  opinion  as  to  the  following  matters: 
Identity  of  persons,  things  or  handwriting;  size,  color  or  weight; 
time  or  distance;  character  of  sounds  and  whence  they  proceed. 
Com.  v.  Sturtivant,  117  Mass.  122,  123,  19  Am.  Rep.  401. 

Kindly  treatment.     Baldwin  v.  Parker,  99  Mass.  79. 

Character  of  a  foundation.  Bardwell  v.  Conway  Ins.  Co.,  122 
Mass.  90. 

Rate  of  expenditure  of  a  person.  Griffin  v.  Brown,  2  Pick. 
(Mass.)    304. 

That  one   seemed  sad.     Culver  v.   Dwight,  6   Gray    (Mass.),  444. 

Or  took  no  interest  in  what  was  going  on.  Com.  v.  Piper,  120 
Mass.  185. 

Whether  a  road  is  dangerous.  Lund  v.  Tyngsborough,  9  Cush. 
(Mass.)    36;  Kelleher  v.  Keokuk,  60  la.  473. 

Whether  "  horn  chains "  are  fragile.  Sioeet  v.  Shumicay,  102 
Mass.  365. 

As  to  a  person's  age.  Com.  v.  O'Brien,  134  Mass.  198:  Eisner  v. 
Supreme  Lodge,  98  Mo.  640. 

Whether  hairs  are  those  of  a  human  being.  Com.  v.  Dorsey,  103 
Mass.  412:  Com.  v.  Sturtivant,  117  Mass.  122. 

Whether  a  foot  and  footprints  correspond.  Com.  v.  Pope,  103 
Mass.  440. 

As  to  whether  one  was  careful  and  temperate.  Gahagan  v.  B.  & 
L.  R.  R.  Co.,  1  Allen   (Mass.).  187;  Cook  v.  Ins.  Co..  84  Mich.  12. 

Where  the  opinion  of  one  is  a  relevant  fact  he  may  state  that 
opinion.     Allen  v.   Hartford  Life  Ins.   Co.,  72  Conn.  697. 

A  witness  cannot  be  asked  whether  a  previous  witness,  who  has 
testified  to  certain  things,  "  had  any  ground "  for  so  testifying. 
ijovell  v.  Hammond  Co.,  66  Conn.  501. 

Opinions  of  persons  not  experts  may  be  admitted  when  they  are 

1Y 


258  A  DIGEST  OF  [Part  I. 

those  of  practical  and  observing  men,  of  the  result  of  their  own 
observations  and  knowledge,  upon  a  question  the  particular  ele- 
ments of  which  are  so  numerous  and  the  character  of  which  is 
such  that  it  is  impracticable  for  them  to  state  the  facts  fully. 
Barber  v.  Manchester,  72  Conn.  684. 

Sanity. — A  nonexpert  witness,  having  stated  the  extent  of  his  per- 
sonal acquaintance,  may  give  an  opinion  as  to  sanity.  State  v.  Cross, 
72  Conn.  722. 

The  mere  opinion  of  a  nonexpert  witness  concerning  the  mental 
condition  of  a  testator  is  never  admissible.  It  is  admissible  only 
in  connection  with  the  particular  facts  on  which  it  is  based  or 
after  the  witness  has  been  shown  to  have  sufficient  means  and 
opportunities  of  personal  observation  to  enable  him  to  form  a 
reasonably  correct  conclusion.  They  are  received  rather  as  state 
ments  of  impressions  or  conclusions  in  the  nature  of  facts  of  which 
the  witness  has  knowledge  than  as  opinions.  Turner's  Appeal,  72 
Conn.  315. 

A  nonexpert  who  has  had  sufficient  opportunity  of  observation 
may  be  asked,  "  Was  the  testator,  in  your  opinion,  a  person  of 
sound  mind  "  or  whether  he  possessed  sufficient  understanding  to 
be  able  to  transact  the  ordinary  business  matters  incident  to  the 
management  of  his  household  affairs  and  property,  or  to  compare  his 
mental  power  with  that  of  an  average  child  of  seven  or  eight 
years.     Turner's  Appeal,   72   Conn.   316. 

Upon  the  issue  of  sanity,  witnesses  to  particular  facts  may  give 
their  opinion  in  connection  with  such  facts.  Hardy  v.  Merrill,  56 
N.  H.  227,  22  Am.  Rep.  441;  Ct.  Ins.  Co.  v.  Lathrop,  111  U.  S.  612; 
Foster's  Ex.  v.  Dickerson,  64  Vt.  233;  Elcessor  v.  Elcessor,  146  Pa.  St. 
359;  A7.  Y.,  etc.,  R.  Co.  v.  Luebeck,  157  111.  595;  Neiccomb  v.  New- 
comb,  96  Ky.  120;  Holland  v.  Zollner,  102  Cal.  633;  Fishburne  v. 
Ferguson,  84  Va.  87. 

The  mere  opinion  of  a  nonexpert  witness  concerning  the  mental 
condition  of  a  testator  is  never  admissible.  But  he  may  state  acts 
and  conversations  of  such  testator  falling  within  his  personal  knowl- 
edge, and  th  m,  upon  these  as  a  basis,  stat<j  his  opinion  as  to  their 
rationality  or  irrationality,  or  whether  or  not  these  were  the  acts 
and  conversations  of  a  rational  person.  Judgment  and  order  (1895). 
36  X.  Y.  Supp.  283,  91  Hun,  165,  affirmed:  Johnson  v.  Cochrane,  54 
N.  E.  1092.   159  X.  Y.  555. 

Value  —  Damages. —  Upon  the  question  of  the  depreciation  in  valu<» 
resulting  from  the  erection  of  telegraph  poles  in  front  of  plaintiff's 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  25!) 

property,  opinion  evidence  is  irrelevant.  Comesky  v.  Postal  Tele- 
graph Cable  Co.,  58  N.  Y.  Supp.  467,  41  App.  Div.  245. 

A  witness  cannot  testify  as  to  the  value  of  chattels,  in  the  absence 
of  evidence  of  the  chattels  themselves  or  their  quality  and  quantity, 
even  if  the  witness  has  personal  acquaintance  with  such  facts.  Judg- 
ment (City  Ct.  N.  Y.,  1899),  GO  N.  Y.  Supp.  1000,  reversed;  Smith  v. 
Smith,  65  N.  Y.  Supp.  497,  32  Misc.  Rep.  702. 

Admissible  opinion  and  evidence  similar  to  opinion  evidence. — ■ 
Under  certain  circumstances,  nonexperts  may  give  opinions.  C.  &  A. 
R.  R.  Co.  v.  Truitt,  68  111.  App.  76;   Carter  v.  Carter,  152  111.  434. 

One  can  testify  as  to  whether  a  person  appears  sick  or  well,  and 
may  compare  appearance  at  different  times  and  state  whether  as- 
sistance was  necessary  under  certain  circumstances.  Salem  v.  Web- 
ster, 192  111.  369,  61  N.  E.  323,  affirming  95  111.  App.  120. 

Any  one  may  testify  that  one  is  sick.  Shawneetown  v.  Town  of 
Mason,  82  111.  337. 

A  witness  may  be  asked  as  to  the  appearance  of  the  party  with 
reference  to  pain  and  suffering.  Cicero  &  P.  St.  Ry.  Co.  v.  Priest, 
190  111.  592,  68  N.  E.  814,  89  111.  App.  304. 

Any  one  is  competent  to  testify  as  to  the  smell  of  liquors.  Mar- 
schall  v.  Laughran,  47  111.  App.  29. 

A  nonexpert  witness  may  testify  as  to  the  necessity  for  medical 
assistance.     C,  B.  &  Q.  R.  R.  Co.  v.  George,  19  111.  510. 

Upon  the  question  of  whether  a  preacher  has  departed  from  the 
faith  of  the  church,  opinions  of  a  witness  are  admissible.  Happy  v. 
Morton,  33  111.  399. 

An  ordinary  witness  may  testify  that  a  bridge  constituted  a  ma- 
terial obstruction  to  navigation.  /.  R.  P.  Co.  v.  Peoria  Bridge  Assn., 
38  111.  467. 

Opinion  evidence  is  admissible  as  to  the  sense  in  which  slanderous 
words  were  used.     Nelson  v.  Borchenious,  52  111.  236. 

In  order  to  testify  as  to  value,  a  witness  must  show  his  knowl- 
edge. Cooper  v.  Randall,  59  111.  317;  C.  d  N.  W.  Ry.  Co.  v.  IngersoU, 
(55  111.  399. 

In  a  negligence  suit,  one  may  give  his  opinion  as  to  the  rate  of 
speed  of  a  train  and  whether  it  was  under  Control.  C,  B.  d  Q.  R.  R. 
Co.  v.  Johnson,  103  111.  512;   Doicden  v.  Wilson,  12  Brad.  297.  299. 

Nonexpert  witnesses  may  testify  as  to  the  capacity  of  a  testator. 
Ring  v.  Lawless,  190  111.  520,  60  N.  E.  S81. 

One  may  testify  that  he  knew  where  another  was  going.  N.  Y.,  C. 
d  St.  L.  R.  R.  Co.  v.  Luebeck,  157  111.  595. 


260  A  DIGEST  OF  [Part  1. 

A  question  as  to  whether  a  train  can  he  seen  from  a  given  point 
is  admissible.     C,  C,  C.  d  St.  L.  Ry.  Co.  v.  Moss,  89  111.  App.  1. 

Witnesses  who  have  driven  a  horse  a  number  of  times,  or  seen  it 
driven  formerly,  are  competent  to  testify  as  to  its  disposition.  Pio- 
neer Fire  Proof  Instruction  Co.  v.  Sunderland.  188  111.  341,  58  N.  E. 
928,  affirming  87  111.  App.  213. 

In  order  that  a  witness  be  allowed  to  give  an  opinion,  he  must  be 
shown  to  be  competent.  Grand  Lodge  v.  Randolph,  186  111.  59,  57 
N.  E.  882,  affirming  84  111.  App.  220. 

A  witness  may  be  asked  "  Who  was  in  possession  and  control  of 
the  premises."     Knight  v.  Knight,  178  111.  553,  53  N.  E.  306. 

In  a  breach  of  promise  case,  a  question  "  Did  he  court  her?"  is  ad- 
missible.    Greenup  v.  Stoker,  3  Gilm.  202. 

On  questions  of  solvency,  a  witness  may  be  asked  if  he  is  the 
owner  of  property.     Corgan  v.  Frew,  39  111.  31. 

The  question  of  whether  a  sidewalk  is  properly  constructed  or  not 
is  one  admitting  nonexpert  testimony.  Alexander  v.  Mt.  Sterling,  71 
HI.  366. 

Custom. —  Custom  may  be  shown  by  nonexpert  evidence.  Wilson 
v.  Bauman,  80  111.  493. 

Question  of  damages. —  In  replevin,  testimony  may  sometime* 
properly  include  both  matters  of  fact  and  opinion  upon  the  question 
of  damages.    Butler  x.  Mehvling,  15  111.  488. 

One  who  has  examined  premises  may  give  his  opinion  as  to  the 
damage  done  to  them.     0.  G.  L.  d  C.  Co.  v.  Graham,  35  111.  346. 

In  condemnation  proceedings,  witnesses  may  give  their  opinions 
as  to  benefits  and  damages.  Hayes  v.  O.  O.  d  R.  V.  R.  R.  Co.,  54 
HI.  373. 

A  jury  may  consider  evidence  given  without  objection  as  to  the 
opinion  of  witnesses  with  reference  to  the  extent  of  damage  to  a 
right  of  way.     R.,  R.  I.  &  St.  L.  R.  R.  Co.  v.  Coppingcr,  66  111.  510. 

Witnesses  may  testify  as  to  the  amount  of  damage  to  the  owner  of 
land  from  the  construction  of  a  railroad.  K.  d  E.  R.  R.  Co.  v.  Henry, 
79  111.  290:   G.  d  I.  W.  R.  R.  Co.  v.  Haslam,  73  111.  494. 

Witnesses  who  have  testified  as  to  personal  knowledge  of  injuries 
and  detailed  their  character  may  give  their  opinions  as  to  damages. 
C.  d  St.  L.  R.  R.  Co.  v.  Woosley,  85  111.  370. 

Opinion  evidence  is  admissible  in  condemnation  proceedings.  Chi- 
cago. P.  d  St.  L.  R.  R.  Co.  v.  Nix,  137  111.  138;  C.  d  N.  W.  Ry.  Co. 
v.  Cicero.  154  Til.  656. 


Chap.   V.]  THE  LAW  OF  EVIDENCE.  261 

A  witness  with  knowledge  of  the  facts  may  testify  as  to  benefits 
resulting  from  a  pavement.  Peyton  v.  Morgan  Park,  172  111.  102, 
49  N.  E.  1003. 

Putting  witness  in  place  of  jury. — A  witness  cannot  be  put  in  the 
place  of  the  jury.  Wabash  Ry.  Co.  v.  Smillie,  97  111.  App.  7;  N.  Gas- 
light &  F.  Co.  v.  Miethke,  35  111.  App.  629,  632. 

Witnesses  cannot  give  their  opinions  in  such  a  way  as  to  cover 
the  very  matter  to  be  submitted  to  a  jujy.  C.  &  A.  R.  R.  Co.  v.  S.  & 
N.  W.  By.  Co.,  67  111.  142. 

A  question  as  to  whether  an  unusual  amount  of  goods  has  been  pur- 
chased by  a  firm  is  for  the  jury,  and  not  a  matter  of  opinion  evi- 
dence.    Gilbert  v.  Kuppcnheimer,  67  111.  App.  251. 

Form  of  question  where  opinion  is  admissible. —  Hypothetical  ques- 
tions involving  assumptions  of  facts,  as  to  which  there  is  testimony, 
may  be  allowed.     Frambers  v.  Risk,  2  Brad.  499. 

In  stating  an  inference  involving  facts,  it  is  not  necessary  to  de- 
tail the  facts.    Lake  Sh.  cC-  M.  S.  R.  R.  Co.  v.  Lassan,  12  Brad.  659. 

Question  of  qualification. —  The  competency  of  a  nonexpert  wit- 
ness is  for  the  court.     Colee  v.  State,  lb  Ind.  511. 

Opinion  admissible  as  to  identity  and  appearance,  etc. —  Non- 
experts may  give  their  opinions  on  questions  of  identity,  resem- 
blance, sickness,  health,  value,  conduct,  and  bearing,  whether  friendly 
or  hostile,  and  the  like,  in  connection  with  the  facts.  Smith  v. 
Indianapolis,  etc.,  R.  R.  Co.,  80  Ind.  233,  235;  Loshbaugh  v.  Birdscll, 
90  Ind.  460,  467 ;  Terre  Haute,  etc.,  R.  R.  Co.  v.  Crawford,  100  Ind. 
550,  556;  Carthage,  etc.,  Co.  v.  Andrews,  102  Ind.  138,  142  (health)  ; 
Louisville,  etc.,  Ry.  Co.  v.  Holsapple,  12  Ind.  App.  .'501    (health). 

A  nonexpert  witness  may  testify  as  to  a  culvert;  that  a  horse  is 
gentle;  that  a  certain  substance  is  "hard-pan;"  that  a  highway 
was  in  good  or  bad  repair;  that  a  certain  liquid  was  whiskey;  that 
a  train  was  running  at  a  specified  rate  of  speed;  that  the  weather 
was  cold  enough  to  freeze  potatoes,  and  that  a  dam  was  sufficient. 
Bennett  v.  Meehan,  83  Ind.  566,  509. 

The  soundness  of  animals  may  be  shown  by  opinion  evidence. 
House  v.  Fort,  4  Blackf.  293. 

A  nonexpert  witness  may  give  an  opinion  as  to  the  speed  at  which 
a  train  was  moving.  Louisville,  etc.,  Ry.  Co.  v.  Jones,  108  Tnd.  551, 
565;  Evansville,  etc.,  Ry.  Co.  v.  Crist,  116  Ind.  446.  457:  Louisville, 
etc.,  Ry.  Co.  v.  Hendricks,  128  Ind.  482,  463;  Stonnes  v.  Lunon,  7 
Ind.  App.  435,  438. 


262  A  DIGEST  OF  [Part  I. 

Where,  in  an  action  for  personal  injury,  a  nonprofessional  wit- 
ness is  testifying  to  the  condition  and  appearance  of  the  injured 
party  before  and  after  the  injury,  an  expression  by  the  witness  that 
the  party  had  grown  worse  is  competent.  Louisville,  etc.,  Ry.  Co.  v. 
Wood,  113  Ind.  544,  551. 

As  to  opinion  evidence  as  to  shades  of  granite,  see  Githens  v.  Mc- 
Donald, 24  Ind.  App.  395. 

Conclusions. —  Witnesses  cannot  state  their  conclusions.  Anderson 
v.  Thunder  Bay,  etc.,  Co.,  61  Mich.  489;  Lemon  v.  Chicago  &  Grand 
Trunk  Ry.  Co.,  59  Mich.  618;   Taylor  v.  Adams,  58  Mich.  188. 

A  witness  cannot  give  his  conclusions  based  upon  facts  in  evidence. 
Dundas  v.  Lansing,  75  Mich.  499;  Tice  v.  Bay  City,  78  Mich.  209, 
44  N.  W.  52;  Jones  v.  Portland,  88  Mich.  598,  50  N.  W.  731. 

Speculation. — A  witness  cannot  give  a  mere  speculation.  Bissel 
v.  Star,  32  Mich.  297. 

New  Jersey. 

Authorities. —  Opinions  of  persons  not  experts  upon  matters  upon 
which  ordinary  persons  are  regarded  as  able  to  form  reliable  opin- 
ions are  admissible,  when  the  facts  cannot  be  recited  to  the  jury 
so  as  to  enable  them  to  form  a  trustworthy  opinion  themselves. 
Koccis  v.  State,  56  N.  J.  L.  44,  e.  g.,  whether  one  was  drunk  or  sober; 
Castner  v.  Slilcer,  33  N.  J.  L.  507. 

Opinion  as  to  insolvency  excluded.  Brundred  v.  Machine  Co.,  4 
N.  J.  Eq.  295. 

An  expert  testifying  as  to  cost  of  certain  repairs  may  not  also 
testify  as  to  the  opinion  of  another  now  dead  who  was  employed  to 
estimate  such  cost  in  conjunction  with  the  witness.  Collins  v.  Lan- 
gan,  58  N.  J.  L.  6. 

Sanity. —  Opinion  of  attesting  witness  admissible  as  to  testator's 
sanity.     Clifton  t.  Clifton,  47   X.  J.  Eq.  227. 

Opinion  of  one  not  an  expert  as  to  sanity  is  admissible  when  given 
in  connection  with  the  facts  upon  which  the  opinion  is  founded. 
Gens  v.  State.  58  X.  J.  L.  482;   Yanauken's  Case.  10  N.  J.  Eq.  192. 

Weight  of  opinion  evidence. —  Life  Ins.  Co.  v.  Brown.  30  N.  J.  Eq. 
193;  Brown  v.  Life  Ins.  Co..  32  N.  J.  Eq.  809;  In  re  Gordon's  Will, 
50  N.  J.  Eq.  397;  Black  v.  Black,  30  N.  J.  Eq.  215;  Childs  v.  Jones, 
41   X.  J.  Eq.  74.  42  N.  J.  Eq.  458. 


(hap.  V.]  THE  LAW  OF  EVIDENCE.  263 

Maryland. 

General  rule. —  Tall  v.  Steam  Packet  Co.,  90  Md.  248. 

A  witness  may  not  state  whether  in  his  opinion  a  person's  life 
was  in  danger  from  one  attacking.     Tucker  v.  State,  89  Md.  471. 

Sanity  —  Nonexperts. —  Opinion  of  one  not  an  expert  as  to  sanity 
is  admissible  when  given  in  connection  with  the  facts  upon  which  the 
opinion  is  based.  Chase  v.  Winans,  59  Md.  475 ;  Jones  v.  Collins, 
1)4  Md.  403;  Brashears  v.  Orme,  93  Md.  442;  Berry  Will  Case,  93 
Md.  560. 

Nonexpert  opinion  as  to  the  mental  condition  of  a  person  can  be 
given  only  with  the  facts  upon  which  such  opinion  is  based.  Kerby 
v.  Kerby,  57  Md.  345;  Stewart  v.  Spedden,  5  Md.  433;  Stewart  v. 
Redditt,  3  Md.  67. 

Opinions  of  personal  friends  as  to  one's  sanity  or  mental  capacity 
aro  admissible  if  accompanied  by  the  facts  upon  which  they  are 
based.  Williams  v.  Lee,  47  Md.  321;  Waters  v.  Waters,  35  Md.  531; 
Weems  v.  Weems,  19  Md.  334;  Dorsey  v.  Warfield,  7  Md.  65. 

As  to  the  sufficiency  of  facts  to  which  a  witness  must  testify  before 
lie  may  give  his  opinion  as  to  sanity,  see  Brashears  v.  Orme,  93  Md. 
442 ;  Berry  Will  Case,  93  Md.  560. 

Subscribing  witnesses  to  a  will. —  The  subscribing  witnesses  to  a 
will  may  state  their  opinion  as  to  the  sanity  of  the  testator  without 
giving  the  facts  upon  which  the  opinion  is  based.  Williams  v.  Lee, 
47  Md.  321. 

The  opinion  of  a  subscribing  witness  to  a  will  as  to  the  testator's 
sanity  is  admissible  without  showing  that  he  made  any  special 
investigation.     Jones  v.  Collins,  94  Md.  403. 

Value. —  Nonexpert  opinion  as  to  the  value  of  cigarettes  allowed. 
Archer  v.  State,  45  Md    33. 

The  opinion  o"f  one  specially  qualified  to  form  an  opinion  is  ad- 
missible to  show  the  value  of  property,  services,  etc.  Wallace  v. 
Schaub,  SI  Md.  594. 

Opinion  of  real  estate  dealer  conversant  with  values  in  the  locality 
is  admissible  to  prove  value  of  a  certain  lot.  Mayor  of  Baltimore 
v.  Smith.  80  Md.  45S. 

Damages. —  Opinion  evidence  is  admissible  on  the  question  of  the 
amount  of  damage  caused  by  the  building  of  a  railway.  Lake  Ro- 
land Ry.  Co.  v.  Weir,  86  Md.  273;  Lake  Roland  Ry.  Co.  v.  Frick, 
8(\  Md.  259. 


264  A  DIGEST  OF  [Part  I. 

Opinion  based  on  hearsay. —  A  witness  may  not  testify  as  to  the 
value  of  certain  articles  of  hardware,  when  his  whole  knowledge  on 
the  subject  is  based  on  information  derived  from  others,  and  it  is 
possible  to  produce  witnesses  who  manufacture  and  sell  such  articles. 
Green  v.  Caulk,  16  Md.  556. 

Opinions  as  to  the  value  of  property  must  be  based  upon  knowledge 
and  not  upon  mere  hearsay.     Railroad  Co.  v.  Shipley,  39  Md.  251. 

Pennsylvania. 

Opinion  evidence  is  generally  rejected. —  Barre  v.  Railway  Co.,  155 
Pa.  170;  Smith  v.  Cohn,  170  Pa.  132;  Heath  v.  Slocum,  115  Pa.  54'J ; 
Auberle  V.  HcKeesport,  179  Pa.  321;  Cookson  v.  Railway  Co.,  179 
Pa.  184;  Graham  v.  Pennsylvania  Co.,  139  Pa.  149. 

Opinion  as  to  the  cause  of  an  ice  jam  not  received.  Shaw  v.  Sus- 
quehanna Boom   Co.,  125  Pa.  324. 

Witness'  opinion  as  to  whether  a  certain  place  on  a  road  was 
dangerous  was  excluded.  Kitchen  v.  Union  Twp.,  171  Pa.  145; 
Graham  v.  Pennsylvania  Co.,  139  Pa.  149;  Siegler  v.  Mellinger,  203 
Pa.  256. 

Opinion  evidence  not  admitted  as  to  the  safety  of  a  sluice  in  a 
public  road.    Platz  v.  McKean  Twp.,  178  Pa.  601. 

It  was  not  error  to  exclude  the  opinion  of  a  witness  that  a  motor- 
man  had  used  good  judgment  in  allowing  his  car  to  proceed.  Woeck- 
ner  v.  Motor  Co.,  187  Pa.  206. 

Opinion  evidence  is  not  proper  as  to  what  may  have  caused  trouble 
between  a  testator  and  his  wife.     Miller  v.  Miller,  187  Pa.  572. 

Opinion  as  to  one's  ability  to  understand  a  contract  is  not  ad- 
missible.    Aiman  v.  Stout,  42  Pa.  114. 

The  attesting  witnesses  to  a  deed  cannot  express  their  opinion  as 
to  the  grantor's  acting  under  undue  influence.  Dean  v.  Fuller,  40 
Pa.  474. 

Legal  conclusions. —  A  witness'  opinion  that  two  parties  made  a 
contract  is  not  admissible.     Monument  Co.  v.  Johnson,  144  Pa.  61. 

The  opinion  of  a  secretary  of  a  building  association  as  to  whether 
a  person  is  a  member  of  the  association  is  not  admissible.  Building 
Society  v.  Holt,  184  Pa.  572. 

A  railroad  inspector  cannot  give  his  opinion  as  to  what  were  the 
duties  of  his  assistants  when  the  instructions  given  them  are  before 
the  court.     Dooner  v.  (.'anal  Co.,  164  Pa.  17. 


Chap.  V.]  TUB  LAW  OP  EVIDENCE.  205 

A  witness  must  testify  as  to  what  was  said  and  done,  not  as  to  his 
opinion  of  the  legal  effect  of  the  words  and  acts.  Irwin  v.  Nolde, 
164  Pa.  205. 

Nonexperts. — The  opinion  of  a  nonexpert  witness  cannot  be  brought 
out  by  asking  him  hypothetical  questions.  Beardslee  v.  Columbia 
Twp.,  188  Pa.  496;  Graham  v.  Pennsylvania  Co.,  139  Pa.  149; 
Dooner  v.  Canal  Co.,  164  Pa.  17;  Cookson  v.  Railway  Co.,  179  Pa. 
184;   Auberle  v.  McEeesport,  179  Pa.  321. 

Opinions  of  nonexperts  generally  not  admissible.  Rouch  v.  Zehring, 
59  Pa.  74. 

Nonexpert  opinion  as  to  the  effect  of  an  injury  on  health  excluded. 
Water  Co.  v.  Stewartson,  96  Pa.  436;  Passenger  Ry.  Co.  v.  Christian, 
124  Pa.  114. 

Where  description  is  inadequate. —  The  opinion  of  a  witness  is 
proper  when  mere  descriptive  language  is  not  adequate  to  convey  the 
facts  to  the  jury.     Whitaker  v.  Campbell,  187  Pa.  113. 

Opinion  evidence  is  not  admissible  where  the  circumstances  can  be 
fully  and  accurately  described  to  the  jury,  and  their  bearing  on  the 
issue  estimated  without  special  knowledge  or  training.  Reese  v. 
Clark,  198  Pa.  312;  Graham  v.  Railroad  Co.,  139  Pa.  149. 

A  witness  who  has  examined  the  place  of  an  accident  may  give  his 
opinion  as  to  its  dangerous  character.  Bcatty  v.  Gilmorc,  10  Pa. 
463;  Hughes  v.  Stevens,  36  Pa.  320;  McNerney  v.  Reading,  150  Pa. 
611.  See  Kitchen  v.  Union  Twp.,  171  Pa.  145;  Graham  v.  Pennsyl- 
vania Co.,  139  Pa.  149;  Siegler  v.  Mellinger,  203  Pa.  256. 

Opinion  of  witnesses  of  experience  admitted  to  show  that  one  in- 
jured acted  in  the  only  manner  possible.  Kehler  v.  Schiccnk,  151 
Pa.  505. 

Special  knowledge  and  experience. —  Opinions  of  persons  having 
special  knowledge  and  experience  are  admissible  to  show  value  of 
property,  services,  etc.     McElheny  v.  Bridge  Co.,  153  Pa.  10S. 

It  is  proper  to  ask  a  doctor  whether  an  ax  would  have  caused  such 
a  wound  as  was  found  on  deceased's  head.  Com.  v.  Bubnis.  197  Pa. 
542. 

One  must  be  shown  to  be  competent  before  he  may  express  his 
opinion.  Wallace  v.  Gas  Co..  147  Pa.  205;  Lineoski  v.  Goal  Co..  157 
Pa.  153. 

Mental  capacity. —  Opinions  of  nonexperts  are  admissible  on  ques- 
tions of  mental  capacity  after  giving  the  facts  upon  which  such 
opinions  are  based.     Rambler  v.  Tryon,  7  S.  &  R.  90;  Wilkinson  v. 


266  A  DIGEST  OF  [Part  I. 

Pearson,  23  Pa.  117;  Pidcoek  v.  Potter,  68  Pa.  342;  Titlow  v.  Titlow, 
54  Pa.  216;  Roche  v.  Wer/j/e,  202  Pa.  169;  Hepler  v.  Hosack,  197  Pa. 
631  :  Elcessor  v.  Elcessor,  146  Pa.  359.  But  not  without  stating  such 
facts.     Dickinson  V.  Dickinson,  61  Pa.  401. 

Subscribing  witnesses  to  will  may  give  their  opinion  as  to  the 
testator's  sanity  without  stating  the  facts  upon  which  such  opinion 
is  based.  Logan  v.  McGinnis,  12  Pa.  27;  Titlow  v.  Titlow,  54  Pa. 
210;  Pidcoek  v.  Potter,  68  Pa.  342;  Wright's  Estate,  202  Pa.  395: 
/7</&er£  v.  Egbert,  78  Pa.  326. 

Laymen  allowed  to  testify  that  they  saw  no  indication  of  insanity 
in  an  accused,  after  stating  their  opportunities  of  knowledge.  Com. 
v.  Gearhardt,  205  Pa.  387. 

Value  of  land  —  Authorities. — Water  Co.  v.  Iron  Co.,  84  Pa.  279; 
Raihcay  Co.  v.  Robinson,  38  Leg.  Int.  22;  8.  C,  95  Pa.  426;  Railway 
Co.  v.  Reed,  6  Atl.  838;  Railway  Co.  v.  Vance,  115  Pa.  325;  Railway 
Co.  v.  Play  ford,  14  Atl.  355;  Myers  v.  Railway  Co.,  5  Pa.  Co.  Ct. 
634;  Curtin  v.  Railway  Co.,  135  Pa.  20;  Gallagher  v.  Kemmerer,  144 
Pa.  509;  Michael  v.  Pipe-Line  Co.,  159  Pa.  99;  Pennock  v.  Pipe  Line 
Co.,  170  Pa.  372. 

An  opinion  as  to  the  value  of  land  given  by  one  never  in  the  neigh- 
borhood is  not  admissible.    Mewes  v.  Pipe-Line  Co.,  170  Pa.  364,369. 

One's  opinion  as  to  the  value  of  land  is  admissible  if  he  is  ac- 
quainted with  land  values  in  the  neighborhood.  He  need  not  be  an 
expert.  McElheny  v.  Bridge  Co.,  153  Pa.  108;  Pennsylvania,  etc., 
Canal  Co.  v.  Bunnell,  81  Pa.  414;  Lee  v.  Springfield  Co.,  176  Pa.  223. 

Opinion  evidence  as  to  value  of  land  taken  for  a  reservoir  ad- 
mitted.    Gearhart  v.  Water  Co.,  202  Pa.  292. 

The  best  evidence  of  the  market  price  of  land  is  the  opinion  of 
witnesses  in  view  of  the  location,  productiveness,  and  prevailing 
prices  in  the  vicinity.  Railroad  Co.  v.  Rose,  74  Pa.  362;  Railroad 
Co.  v.  Hiester,  40  Pa.  53. 

Value  of  chattels. —  Betz  v.  Hummel,  13  Atl.  938. 

Competency  on  the  question  of  damages. —  Gorgas  v.  Railway  Co., 
144  Pa.  1;  Dawson  v.  Pittsburgh,  159  Pa.  317:  Lee  v.  Water  Co., 
176  Pa.  223;  Lewis  v.  Water  Co.,  176  Pa.  230. 

Real  estate  agent  with  experience  admitted  as  an  expert  to  testify 
as  to  the  damage  caused  to  a  lot  by  the  opening  of  a  street.  Darling- 
ton v.  Allegheny  City,  189  Pa.  202. 

In  proceedings  to  assess  damages,  opinion  evidence  as  to  value  is 
admissible.     Watson  v.  Railroad  Co.,  37  Pa.  469. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  267 

Weight  of  opinion  evidence. —  Hoffman  v.  Bloomsburg  R.  Co.,  143 
Pa.  503;  Rothchild  v.  Central  R.  of  N.  J.,  163  Pa.  49;  Pannell  v. 
Com.,  86  Pa.  260. 

It  may  be  proper  for  the  court  to  charge  that  opinion  as  to  one's 
testamentary  capacity  is  not  of  as  much  weight  as  evidence  concern- 
ing his  business  transactions.     Messner  v.  Elliott,  184  Pa.  41. 

Article  49. 
opinions  of  experts  on  points  of  science  or  art. 

When  there  is  a  question  as  to  any  point  of  science  or 
art,  the  opinions  upon  that  point  of  persons  specially  skilled 
in  any  such  matter  are  deemed  to  be  relevant  facts. 

Such  persons  are  hereinafter  called  experts. 

The  words  "  science  or  art,  "  include  all  subjects  on  which 
a  course  of  special  study  or  experience  is  necessary  to  the 
formation  of  an  opinion,2  and  amongst  others  the  examina- 
tion of  handwriting. 

When  there  is  a  question  as  to  a  foreign  law  the  opinions 
of  experts  who  in  their  profession  are  acquainted  with  such 
law  are  the  only  admissible  evidence  (hereof,  though  such 
experts  may  produce  to  the  Court  books  which  they  declare 
to  be  works  of  authority  upon  the  foreign  law  in  question, 
which  books  the  Court,  having  received  all  necessary  expla- 
nations from  the  expert,  may  construe  for  itself.3 

It  is  the  duty  of  the  judge  to  decide,  subject  to  the 
opinion  of  the  Court  above,  whether  the  skill  of  any  person 

21  Smith's  Leading  Cases,  474  et  seq.:  (note  to  Cater  v.  Boehtn, 
1663),  28  Vict.  c.  18,  s.  8. 

3  Baron  de  Bode's  Case,  1845,  8  Q.  B.  267;  Di  Sora  v.  Phillipps, 
1863.  10  H.  L.  Ca.  624;  Castrique  v.  Imrie.  1870.  L.  R.  4  H.  L. 
at  p.  434:  see.  too.  Picton's  Case,  1806.  30  S.  T.  510  et  seq. 


268  A  DIGEST  OF  [Part  I. 

in  the  matter  on  which  evidence  of  his  opinion  is  offered  is 
sufficient  to  entitle  him  to  be  considered  as  an  expert.4 

The  opinion  of  an  expert  as  to  the  existence  of  the  facts 
on  which  his  opinion  is  to  be  given  is  irrelevant,  unless  he 
perceived  them  himself.5 

Illustrations. 

(a)    The  question  is,  whether  the  death  of  A  was  caused  by  poison. 

The  opinions  of  experts  as  to  the  symptoms  produced  by  the  poison 
by  which  A  is  supposed  to  have  died,  are  deemed  to  be  relevant.0 

(6)  The  question  is,  whether  A  at  the  time  of  doing  a  certain  act, 
was  by  reason  of  unsoundness  of  mind,  incapable  of  knowing  the 
nature  of  the  act,  or  that  he  was  doing  what  was  either  wrong  or  con- 
trary to  law. 

The  opinions  of  experts  upon  the  question  whether  the  symptoms 
exhibited  by  A  commonly  show  unsoundness  of  mind,  and  whether 
such  unsoundness  of  mind  usually  renders  persons  incapable  of  know- 
ing the  nature  of  tl  °  acts  which  they  do,  or  of  knowing  that  what  they 
do  is  either  wrong  or  contrary  to  law,  are  deemed  to  be  relevant  J 

(c)  The  question  is,  whether  a  certain  document  was  written  by  A. 
Another  document  is  produced  which  is  proved  or  admitted  to  have 
been  written  by  A. 

The  opinions  of  experts  on  the  question  whether  the  two  documents 
were  written  by  the  same  person  or  by  different  persons,  are  deemed  to 
be  relevant.8 

(d)  The  opinions  of  experts  on  the  questions,  whether  in  illustration 
(a)  A's  death  was  in  fact  attended  by  certain  symptoms;  whether  in 
illustration  (o)  the  symptoms  from  which  they  infer  that  A  was  of 
unsound  mind  existed;  whether  in  illustration  (c)  either  or  both  of  the 
documents  were  written  by  A,  are  deemed  to  be  irrelevant. 

*Bristow  v.  Sequeville,  1850,  6  Ex.  275;  Rowley  v.  L.  d  N.  W.  Rail- 
way, 1873,  L.  R.  8  Ex.  221.  In  the  Goods  of  Bonelli,  1875,  L.  R.  1  P.  D. 
69;  and  see  In  the  Goods  of  Dost  Aly  Khan,  1880.  L.  R.  6  P.  D.  6. 

5  1  Ph.  520;  Taylor,  1421. 

$  R.  v.  Palmer,  1856  (passim).  See  my  'History  of  Crim.  Law,' 
iii.  389. 

7  R.  v.  Dove,  1856  (passim).    '  History  Crim.  Law,'  iii.  426. 

8  28  Vict.  c.  18,  s.  8. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  269 


AMERICAN  NOTES. 
General. 

Authorities. —  Lawson  on  Expert  and  Opinion  Evidence  ( 2d  ed. ) , 
chaps.  1-7;  12  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  414 
et  seq. 

First  paragraph  of  text.  Page  v.  Parker,  40  N.  H.  47,  58; 
Hammond  v.  Woodman,  41  Me.  177,  66  Am.  Dee.  219,  n.;  Spring  Co. 
v.  Edgar,  99  U.  S.  645,  657;  Coyle  v.  Com.,  104  Pa.  St.  117;  Mul- 
downey  v.  III.  Cent.  R.  Co.,  36  la.  462.  See  Louisville,  etc.,  R.  Co.  v. 
Lucas,  119  Ind.  583. 

Subjects  of  expert  testimony. —  The  test  as  to  the  admissibility  of 
expert  testimony  is  not  whether  the  subject-matter  is  uncommon,  or 
whether  many  have  knowledge  of  it,  but  whether  the  witnesses  have 
any  peculiar  knowledge  or  experience  not  common  to  the  world. 
Taylor   v.    Monroe,   43    Conn.    44. 

Within  the  meaning  of  the  rule,  every  business  or  employment 
which  has  a  particular  class  devoted  to  its  pursuit  is  a  science  or 
art.     Lawson  on  Expert  and  Opinion  Evidence   (2d  ed. ),  p.  3. 

Among  the  persons  whose  testimony  may  be  admitted  as  that  of 
experts  are  the  following:  Assayers.  State  v.  Knight,  43  Me.  19. 
Photographers.  Marston  v.  Dinglcy,  88  Me.  546.  Surveyors.  Bar- 
ron v.  Cobleigh,  11  N.  H.  557,  35  Am.  Dec.  505;  Wallace  v.  Ooodale, 
18  N.  H.  439. 

The  following  are  proper  subjects  of  expert  evidence:  How  much 
sand  is  used  with  a  cask  of  lime.     Miller  v.  Shay,  142  Mass.  598. 

Whether  the  end  of  a  drain  in  a  cellar  should  be  open.  Stead  v. 
Worcester,  150  Mass.  241. 

As  to  the  normal  condition  of  the  private  parts  of  a  girl.  Com. 
v.  Lynes,   142  Mass.  577. 

But  not  whether  a  certain  piece  of  land  is  large  enough  for  a 
house  and  stable.     Pierce  v.  Boston,  164  Mass.  92. 

He  may  testify  as  to  the  cause  of  death.  Com.  v.  Thompson,  159 
Mass.  56. 

The  law  of  the  forum  cannot  be  proved  by  the  testimony  of 
lawyers.     Gaylor's  Appeal,  43  Conn.  82. 

Foreign  law. —  Barroics  v.  Downs,  9  R.  I.  447,  11  Am.  Rep.  283; 
Charlotte  v.   Chouteau.   33  Mo.   194.  200. 


270  A  DIGEST  OF  [PaetI. 

The  common  law  of  another  State  may  be  proven  by  expert  evi- 
dence. Jenne  v.  Harrisville,  63  N.  H.  405;  Ennis  v.  Smith,  14  How. 
(U.  S.)  400;  Mowry  v.  Chase,  100  Mass.  79;  In  re  Roberts'  Will,  8 
Paine    (U.    S.),   446. 

Practicing  lawyers  of  another  State  may  testify  as  to  the  law  of 
that  State.  Dyer  v.  Smith,  12  Conn.  386.  But  in  some  States  one 
need  not  be  a  practitioner.  Sechinger  v.  Mfg.  Co.,  129  Mo.  590; 
Mowry  v.  Chase,  100  Mass.  79. 

A  magistrate,  who  is  not  a  lawyer,  may  be  a  competent  witness 
as  to  the  law  of  his  jurisdiction.     Richard  v.  Bailey,  26  N.  H.  169. 

To  the  same  effect  is  Hall  v.  Costello,  48  N.  H.  179. 

In  the  absence  of  proof  of  a  foreign  law,  the  common  law  of  the 
forum  is  applied.  Carpenter  v.  Grand  Trunk  R.  R.  Co.,  72  Me.  388; 
O'Reilly  v.  N.  Y.,  etc.,  R.  R.  Co.,  16  R.  I.  389;  Musser  v.  Stauffer, 
178  Pa.  St.  99;  Slaughter  v.  Bernards,  88  Wis.  111. 

In  the  absence  of  proof,  the  foreign  law  is  presumed  to  be  the 
same  as  that  of  the  forum.  Kelley  v.  Kelley,  161  Mass.  Ill; 
Dickson  v.  United  States,  125  Mass.  311;  Mclntyre  v.  B.  &  M.  R.  R. 
Co.,  163  Mass.  189. 

A  printed  book,  purporting  to  be  a  copy  of  the  statutes  of  another 
State,  is  not  evidence  of  such  statutes.  Bosticich  v.  Bogardus.  1 
Root   (Conn.),  250. 

To  prove  a  foreign  written  law,  expert  evidence  is  admissible 
either  with  or  without  a  copy  of  such  law.  Barrows  v.  Downs,  9  R. 
I.  446. 

As  to  proving  laws  and  treaties  of  the  United  States,  see  U.  S. 
Rev.  Stat.,  sec.  908. 

As  to  authentication  of  the  laws  of  other  States  and  territories 
of  the  United  States  and  countries  subject  to  its  jurisdiction,  see 
U.  S.  Rev.  Stat.,  sec.  905. 

In  some  States,  by  statute,  the  law  reports  of  another  State  may  be 
read  in  evidence.  Maine  Rev.  Stat.,  chap.  82,  sees.  108,  109;  2  How. 
Stat.    (Mich.)    7508,  7509. 

Examination  of  handwriting. —  Withee  v.  Rowe,  45  Me.  571,  589; 
Moody  v.  Rowell,  17  Pick.  (Mass.)  490,  28  Am.  Dec.  317. 

Question  of  qualification  for  the  judge.— Sustaining  text.  Perkins 
v.  Stichney,  132  Mass.  217;  Haicks  v.  Charlemont,  110  Mass.  110; 
Com.  v.  Williams,  105  Mass.  68;  Struthers  v.  Phila.,  etc.,  R.  Co.,  174 
Pa.  St.  291;  Stillicell,  etc.,  Co.  v.  Phelps,  130  U.  S.  520.  See  Ste- 
vens  v.  Minneapolis,  42  Minn.  136;  State  v.  Main,  69  Conn.  141. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  271 

Testimony  as  to  facts. — Spear  v.  Richardson,  37  N.  H.  23,  34 ; 
Dexter  v.  Hall,  15  Wall.  9,  26;  Quinn  v.  Higgins,  63  Wis.  664,  53 
Am.  Rep.  305  and  note ;  Walker  v.  Rogers  Exr.,  24  Md.  232,  242. 

Form  of  question. —  Jewett  v.  Brooks,  134  Mass.  505;  Meeker  v. 
Keeker,  74  la.   352;   Hicks  v.   Citizens'  R.  Co.,  124  Mo.   115. 

It  is  the  proper  way,  in  examining  an  expert,  to  state  all  the 
particulars  upon  which  his  opinion  is  sought.  But  the  direction  of 
the  matter  lies  within  the  discretion  of  the  presiding  judge.  Rora- 
back  v.  Pennsylvania  Co.,  58  Conn.  294. 

Where  an  expert  is  asked  his  opinion  upon  certain  facts  proved, 
the  weight  of  authority  is  that  the  facts  should  be  stated  in  the 
question.    Barber's  Appeal,  63  Conn.  408. 

Qualification. —  The  acceptance  of  a  public  office  and  the  perform- 
ance of  its  duties  are  circumstances  which  a  court  may  consider  in 
determining  whether  to  permit  the  incumbent  to  testify  as  an  ex- 
pert in  matters  relating  to  his  duty,  even  if  he  should  not  be  re- 
garded as  presumably  qualified  by  virtue  of  his  office.  State  v.  Main, 
69  Conn.  124. 

Question  of  qualification. —  The  court  in  determining  the  compe- 
tency of  an  expert  need  not  confine  itself#to  his  statements,  but  may 
consider  the  evidence  of  other  witnesses  in  regard  to  such  competency. 
Wright  v.  Schnaier,  70  N.  Y.  Supp.  128. 

A  person  in  reality  a  medical  expert  can  give  his  opinion,  although 
he  has  no  license  to  practice;  however,  the  court  will  receive  his  tes- 
timony only  when  made  satisfied  of  his  competency  as  an  expert. 
People  v.  Rice,  54  N.  E.  48,  159  N.  Y.  400. 

Subjects  not  properly  for  expert  evidence. —  Experts  cannot  testify 
as  to  matters  of  common  knowledge.  C.  &  A.  Ry.  Co.  v.  Lewondow- 
ski,  190  111.  301,  60  N.  E.  497;  Brewster  v.  Weir,  93  111.  App.  53S; 
North  Kankakee  St.  R.  R.  Co.  v.  Blatchford,  81  111.  App.  609;  Hughes 
v.  Richter,  161  111.  409. 

The  condition  of  a  bridge  at  the  time  of  an  accident  is  not  a  sub- 
ject of  expert  evidence.     T.,  P.  &  W.  R.  R.  Co.  v.  Conroy,  68  111.  560. 

Whether  one  is  drunk  or  not  does  not  present  a  question  for  expert 
testimony.  Aurora  v.  Hillman,  90  111.  61;  Dimmick  v.  Doiones,  82 
111.  570. 

The  location  of  the  line  of  danger  from  passing  trains  is  not  a 
proper  subject  of  expert  testimony.  C.  &  N.  Ry.  Co.  v.  Moranda,  1«U3 
111.  576. 


272  A  DIGEST  OF  [Part  I. 

Defining  terms. —  Experts  may  define  terms  of  art.  Reed  v.  Hobbs, 
2  Scam.  297;  Jupitz  v.  People,  34  111.  516. 

Putting  expert  in  place  of  jury. —  The  experts,  in  their  opinions, 
cannot  pass  upon  the  question  to  be  submitted  to  the  jury.  Hoener 
v.  Koch,  84  111.  408;  Myers  v.  Lockicood,  85  111.  App.  251;  C,  R.  I. 
d  P.  R.  R.  Co.  v.  Mofjltt,  75  111.  524;  Pyle  v.  Pyle,  158  111.  289. 

Qualifying  expert. —  Before  giving  his  opinion,  an  expert  must 
qualify  as  an  expert.  McCormick  H.  M.  Co.  v.  Burandt,  37  111.  App. 
167. 

In  order  to  be  an  expert  witness,  one  must  have  had  experience. 
Citizens'  Gaslight  d  Heat.  Co.  v.  O'Brien,  15  111.  App.  400. 

An  expert  must  be  qualified  by  experience  as  well  as  knowledge 
of  theory.     Citizens'  Gaslight  d  Heat.  Co.  v.  O'Brien,  15  Brad.  400. 

A  witness,  in  order  to  give  an  opinion,  must  have  an  acquaintance 
with  the  subject-matter.  M.  IF.  S.  El.  R.  R.  Co.  v.  Dickinson,  161 
111.  22. 

Lawyers  as  experts. —  Lawyers  may  testify  as  experts.  L.,  N.  A. 
d  C.  Ry.  Co.  v.  Wallace,  136  111.  92. 

Experts  cannot  construe  a  contract.  Lord  v.  Owen,  35  111.  App. 
383. 

Title  cannot  be  proved  by  the  opinion  of  lawyers.  Leahy  v.  Hair, 
33  111.  App.  461,  464;  Mead  v.  Alt  geld,  33  111.  App.  373,  381. 

Physicians  as  experts. —  Medical  men  may  testify  as  experts. 
S.,  X.  A.  &  C.  R.  R.  Co.  v.  Shires,  108  111.  617. 

Physicians  may  testify  as  to  the  union  of  broken  bones  and  as  to 
the  advisability  of  an  operation.  Morton  v.  Zwierzykowski,  192  111. 
328,  61  N.  E.  413,  affirming  91  111.  App.  462. 

An  attending  physician  may  testify  as  to  the  probable  effect  of  an 
injury.     T.,  W.  &  W.  Ry.  Co.  v.  Baddeley,  54  111.  20. 

The  fact  of  paralysis  may  be  proved  by  an  expert.  C.  W.  D.  Ry. 
Co.  v.  Lambert,  119  111.  257. 

A  surgeon  may  testify  whether  external  violence  might  produce 
a  certain  result.  L.  E.  d  W.  R.  R.  Co.  v.  Wills,  39  111.  App.  655; 
Wabash  West.  Ry.  Co.  v.  Friedman,  41  111.  App.  275. 

A  medical  witness  may  testify  that  a  given  accident  would  be  apt 
to  result  in  a  given  injury.  Illinois  Cent.  R.  R.  Co.  v.  Treat,  75  111. 
App.  327.    Compare  Chicago  St.  Ry.  Co.  v.  Smith,  69  111.  App.  69. 

The  chance  of  survival  of  a  seven  months'  child  may  be  shown  by 
expert  evidence.    People  v.  Johnson,  70  111.  App.  634. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  273 

An  expert  may  testify  as  to  whether  or  not  a  child  of  thirteen 
months  was  probably  a  seven  months'  child.  People  v.  Johnson,  70 
111.  App.  634. 

A  physician  may  give  his  opinion  as  to  the  effect  of  injuries.  S.  C. 
Ry.  Co.  v.  Welsch,  155  111.  511. 

An  expert  cannot  testify  as  to  the  effect  of  morphine  on  a  person 
whose  brain  is  affected.    JEtna  Ins.  Co.  v.  Shoemaker,  59  111.  App.  643. 

The  jury  may  determine  damages  in  personal  injury  cases  without 
opinion  evidence.     Norton  v.  Yolzke,  158  111.  402. 

Expert  testimony  as  to  the  period  of  gestation,  in  a  bastardy  case, 
is  admissible  in  evidence.     People  v.  Johnson,  70  111.  App.  634. 

Form  of  question. — Hypothetical  questions  are  admissible.  C.  de 
A.  Ry.  Co.  v.  Harrington,  192  111.  9,  61  N.  E.  622,  affirming  90  111. 
App.  638;  G.  L.  Co.  v.  Wiggin,  52  111.  App.  69;  T.  Mfg.  Co.  v.  Hoyle, 
39  111.  App.  539;  M'Fall  v.  Smith,  32  111.  App.  463,  472. 

If  the  evidence  introduced  tends  to  establish  the  facts  assumed  in 
a  hypothetical  question,  it  is  proper  to  allow  the  question.  People 
v.  Johnson,  70  111.  App.  634. 

Hypothetical  questions  are  proper  on  cross-examination  to  test  the 
skill  and  accuracy  of  an  expert.  West  Chicago  St.  Ry.  Co.  v.  Fish- 
man,  169  111.  196,  48  N.  E.  447. 

All  material  undisputed  facts  bearing  on  the  matter  should  be  in- 
cluded in  a  hypothetical  question.  Catlin  v.  Traders'  Ins.  Co.,  83  111. 
App.  40;  Levison  v.  Sands,  81  111.  App.  578;  Decatur  v.  Fisher,  63 
111.  241. 

Hypothetical  questions  based  upon  facts  as  each  other's  evidence 
are  admissible  in  examining  an  expert.  Frambers  v.  Risk,  2  Brad. 
499. 

Railway  experts  —  Engineers. — An  expert  may  testify  as  to  the 
efficiency  of  a  spark-arresting  device.  Evansville  R.  R.  Co.  v.  Keith, 
8  Ind.  App.  57. 

The  engineer  cannot  testify  that  the  blowing  of  a  whistle  was  un- 
necessary.    Chicago,  etc.,  R.  Co.  v.  Cummings,  24  Ind.  App.  192. 

A  railroad  man  can  testify  as  to  the  danger  of  running  a  train 
backwards.     Chicago,  etc.,  R.  Co.  v.  Grim,  25  Ind.  App.  494. 

The   relative  manner  of  coupling  cars   equipped   with   single   and 
double  deadwoods.  and  the  increased  danger  attending  the  coupling  of 
cars  constructed  with  the  latter,  are  proper  subject  for  expert  testi- 
mony.    Louisville,  etc.,  Ry.  Co.  v.  Frawley,  110  Ind.  18,  27. 
18 


274  A  DIGEST  OF  [Part  I. 


A  man  who  has  handled  hand  cars,  or  assisted  in  their  manage- 
ment, may  express  an  opinion  as  to  the  rate  of  speed  at  which  a 
hand  car  was  moving.  Evansville,  etc.,  R.  R.  Co.  v.  Crist,  116  Ind. 
446,  457. 

A  competent  expert  may  give  an  opinion  as  to  the  distance  at 
which  it  is  safe  to  stop  before  going  upon  a  crossing.  N.  Y.,  etc.,  Ry. 
Co.  v.  Grand  Rapids,  etc.,  R.  R.  Co.,  116  Ind.  60,  63. 

Whether  a  railroad  was  finished  at  a  certain  date  is  a  question  of 
fact,  involving  science  and  skill,  and  not  a  mixed  question  of  law  and 
fact,  and  the  opinion  of  experts  is  admissible  concerning  it.  Hilton 
v.  Mason,  92  Ind.  157,  168. 

Expert  contractors  in  railroad  building,  may  testify  that,  but  for 
delays  caused  by  the  railroad  company  and  its  engineers,  the  work 
contracted  for  could  have  been  completed  in  the  time  fixed  in  the 
contract.    Louisville,  etc.,  Ry.  Co.  v.  Donnegan,  111  Ind.  179,  191. 

Mechanical  experts. —  Bridge  builders  may  state  whether,  if  a 
bridge  had  been  kept  in  repair,  it  would  have  borne  safely  a  certain 
load.     Bonebrake  v.  Board,  etc.,  141  Ind.  62. 

One  experienced  in  handling  derricks  may  testify  as  to  whether  a 
particular  rope  used  with  a  derrick  was  of  sufficient  strength.  Con. 
Stone  Co.  v.  Williams,  26  Ind.  App.  131. 

Expert  evidence  as  to  how  far  a  cage  in  a  mine  would  drop  before 
the  safety  catch  would  stop  it  is  admissible.  Diamond,  etc.,  Co.  v. 
Edmonson,  14  Ind.  App.  594. 

An  expert  may  testify  as  to  whether  a  complicated  machine  can 
do  the  work  for  which  it  was  intended.  Buckeye  Mfg.  Co.  v.  Woolley, 
etc.,  Works,  26  Ind.  App.  7. 

Experts  may  testify  as  to  similar  appliances.  Indiana  Bituminous 
Coal  Co.  v.  Buffey,  62  N.  E.  279. 

Where  the  defendant  produced  an  expert  witness  who  testified  as- 
to  the  result  of  an  examination  of  the  heel  of  a  boot  worn  by  the 
deceased  at  the  time  of  the  accident,  it  was  proper  for  the  court  tn 
permit  the  plaintiff  to  introduce  a  shoemaker  as  a  witness  in  re- 
buttal on  this  question.  Lake  Erie,  etc.,  R.  R.  Co.  v.  Mugg,  132  Ind. 
168,  175. 

A  machinist  who  repaired  an  engine  two  years  after  its  purchase 
may  testify  to  defects  in  its  structure  and  general  character,  where 
the  issue  is  to  its  fulfillment  of  the  warranty  given  upon  its  sale. 
National  Bank,  etc.,  Co.  v.  Dunn,  106  Ind.  110,  114. 


Chap.    V.]  THE  LAW  OF  EVIDENCE.  27J 

Value  of  property  and  services. —  It  is  competent  to  prove  values 
by  witnesses  who  have  a  knowledge  of  the  matter  in  controversy,  and 
a  proper  acquaintance  with  the  general  value  of  services,  articles,  or 
things  of  like  character.  Boiven  v.  Bowen,  74  Ind.  470 ;  Smith  v. 
Indianapolis,  etc.,  By.  Co.  80  Ind.  233,  235 ;  /Etna  Life  Ins.  Co.  v. 
Nexsen,  84  Ind.  347,  351;  Yost  v.  Convoy,  92  Ind.  464;  Terre  Haute, 
etc.,  B.  B.  Co.  v.  Crawford,  100  Ind.  550,  556;  City  of  Lafayette  v. 
Nagle,  113  Ind.  425,  428;  Evansville,  etc.,  B.  B.  Co.  v.  Feltig,  130 
Ind.  61,  63;  Grave  v.  Pemberton,  3  Ind.  App.  71,  73;  Soy  v.  Petty, 
3  Ind.  App.  241,  244. 

Experts  may  testify  as  to  the  value  of  property  or  services. 
Board  v.  Chambers,  75  Ind.  409;  Penn.  Co.  v.  Hunsley,  23  Ind.  App. 
37   (land)  ;  Ruber  v.  Beck,  6  Ind.  App.  484   (growing  crop). 

The  best  and  only  legitimate  evidence  of  the  value  of  land  at 
the  time  of  its  sale  is  the  opinion  of  witnesses  who  have  personal 
knowledge  of  the  land,  and,  from  their  own  observation,  have  become 
acquainted  with  its  value.     Crouse  v.  Holman,  19  Ind.  30. 

One  who  has  examined  property  and  inquired  of  qualified  persons 
as  to  its  value  may  testify  to  its  value,  although  not  a  resident  of  the 
city  where  it  is  situated.    Jones  v.  Snyder,  117  Ind.  229,  232. 

A  witness  is  not  competent  to  testify  as  to  how  much  a  person's 
life-estate  would  be  worth  at  sheriff's  sale,  considering  his  age  and 
physical  condition,  when  he  is  not  shown  to  have  the  slightest  knowl- 
edge of  the  matter  upon  which  he  necessarily  gave  an  opinion  in 
answering  the  question,  viz. :  upon  the  effect  of  the  person's  physical 
condition  upon  his  expectancy  of  life.  Wilson  v.  Bennett,  132  Ind. 
210,  211. 

Every  person  who  has  arrived  at  the  age  of  maturity  must  have 
had  more  or  less  experience  in  caring  for  the  sick  or  seeing  it  done, 
and  when  one  has  seen  such  services  as  they  are  being  rendered,  he  is 
competent  to  give  facts  and  then  his  opinion  as  to  the  value  of  such 
services,  the  weight  of  such  evidence  to  be  determined  by  the  jury. 
Stomis  v.  Lemon,  7  Ind.  App.  435,  437. 

In  an  action  by  a  physician  for  services  rendered  in  conducting 
post-mortem  examinations  for  the  coroner,  it  is  immaterial,  in  deter- 
mining the  value  of  such  services,  what  is  or  has  been  the  average 
daily  income  of  such  physician  from  his  profession.  Board,  etc.  v. 
Chambers,  75  Ind.  409,  410. 


276  A  DIGEST  OF  [I'jlrtI. 

Where  in  such  action  expert  witnesses  testified  as  to  the  value  of 
such  services,  there  was  no  error  in  refusing  to  strike  out  such  evi- 
dence.    Soy  v.  Petty,  3  Ind.  App.  241,  244. 

Evidence  as  to  the  price  other  physicians  could  have  heen  pro- 
cured to  perform  such  services  was  incompetent.  Soy  v.  Petty, 
3  Ind.  App.  241,  244. 

Works  of  science,  scientific  facts. —  The  rule  that  scientific  publica- 
tions are  not  admissible  in  evidence  does  not,  of  course,  prevent  their 
use  as  a  means  of  ascertaining  the  learning  and  the  competency  of  an 
expert.  They  may  be  referred  to  on  cross-examination,  and  an  expert 
may  be  asked  if  he  has  read  them;  if  he  agrees  with  the  conclusions 
of  their  authors,  the  questions  based  upon  their  contents  may  be 
asked.     Hess  v.  Loicrey,  122  Ind.  233. 

An  expert  may  not  only  give  his  opinion,  but  may  state  facts 
which  are  the  result  of  scientific  knowledge  or  professional  skill. 
Jones  v.  Angell,  95  Ind.  37G,  378. 

The  phase  of  the  moon  and  the  condition  of  the  atmosphere  on  a 
given  night  may  be  shown  to  the  jury,  but  experts  cannot  testify  as 
to  the  quantity  and  quality  of  the  light.  Green  v.  State,  154  Ind. 
655. 

Testamentary  capacity. —  On  questions  of  testamentary  capacity, 
evidence  as  to  the  capacity  of  the  testator  to  do  business  is  incom- 
petent.   Brackncy  v.  Fogle,  156  Ind.  535. 

Surveyors  and  engineers. — A  civil  engineer  may  testify  as  to 
whether  a  hole  was  dangerous  and  needed  protection.  Cross  v.  Lake 
Sh.  &  M.  S.  R.  R.  Co.,  69  Mich.  363. 

A  surveyor  may  state  his  opinion  that  the  corners  of  land  in  dis- 
pute were  in  accordance  with  the  original  government  survey.  Hock- 
moth  v.  DesGrands  Champs,  71  Mich.  520. 

A  surveyor's  testimony  as  to  a  fence  is  admissible  only  in  connec- 
tion with  his  data.      Jones  v.  Lee,  77  Mich.  35. 

Boundary  lines  cannot  be  proven  by  the  opinions  of  surveyors. 
Burt  v.  Busch,  82  Mich.  506. 

New  Jersey. 

Subjects  of  expert  testimony. —  Opinions  of  experts  are  not  admis- 
sible as  to  matters  of  common  knowledge  and  experience.  New  Jersey 
Traction  Co.  v.  Brabban,  57  N.  J.  L.  691. 

Expert  opinion  not  admissible  on  matters  of  which  nonexperts  are 
oomprlcnf  to  judge.     Cook  v.  State,  4  Zab.  844. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  277 

Expert  opinion  not  admissible  on  a  matter  which  it  is  the  jury  s 
function  to  determine.     Traction  Co.  v.  Bliss,  G2  N.  J.  L.  410. 

Expert  opinion  not  admissible  to  prove  that  a  foreigner  was  able 
to  use  and  understand  certain  English  words.  Koccis  v.  Stale,  50 
N.  J.  L.  44. 

Qualification  as  an  expert. —  The  qualification  of  an  expert  re- 
quires either  study  or  practice,  not  mere  observation.  Wheeler  <& 
Wilson  Co.  v.  Buckhout,  (iO  N.  J.  L.  102. 

Witness'  opinion  competent  only  when  he  has  special  knowledge 
on  the  subject.    Laing  v.  United  N.  J.  R.  &  C.  Co.,  54  N.  J.  L.  570. 

Opinion  of  a  miller  as  to  quantity  of  grain  a  mill  could  grind. 
Read  v.  Barker,  30  N.  J.  L.  378,  32  N.  J.  L.  477. 

Experienced  fireman  an  expert  as  to  the  increased  risk  from  lire 
because  of  alterations  in  a  building.  Schenck  v.  Insurance  Co.,  4 
Zab.  448. 

A  farmer  is  an  expert  as  to  damage  caused  by  a  railroad  to  land 
due  to  the  changed  agricultural  conditions  but  not  as  to  the  damage 
caused  by  the  exposure  to  fire.  I'ennsylvania  R.  Co.  v.  Root,  53 
N.  J.  L.  253. 

The  decision  of  the  trial  court  as  to  whether  a  witness  is  qualified 
as  an  expert  is  conclusive  unless  very  clearly  wrong.  Neiv  Jersey 
Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  N.  J.  L.  189. 

Laws  of  another  State. —  The  existence  and  meaning  of  written 
and  unwritten  laws  of  another  State  may  be  proved  by  opinions  of 
expert  witnesses.     Trust  Co.  v.  Potteries  Co.,  56  N.  J.  Eq.  441. 

Opinions  of  medical  experts. —  State  v.  Powell,  2  Hal.  244;  Cast- 
ner  v.  Sliker,  33  N.  J.  L.  95,  507. 

Expert  opinion  as  to  probable  duration  of  disability  is  admissible, 
even  though  based  in  part  upon  statements  made  by  the  disabled 
person.     Consolidated  Traction  Co.  v.  Lambertson,  59  N.  J.  L.  297. 

Value. —  Real  estate  agents  as  experts  on  the  subject  of  rents. 
Haulenbeck  v.  Conkright,  23  N.  J.  Eq.  407. 

As  to  opinion  of  real  estate  dealers  as  to  value  of  a  certain  lot.  sc<- 
Laing  v.  United  N.  J.  R.  Co.,  54  N.  J.  L.  576. 

Expert  testimony  as  to  the  value  of  shade  trees  to  a  lot.  Elvins 
v.  Telegraph  Co.,  63  N.  J.  L.  243. 

Expert  opinion  not  admitted  to  show  difference  in  value  of  prop- 
erty caused  by  the  construction  of  a  railroad.  Thompson  v.  Pennsyl- 
vania R.  Co.,  51  N.  J.  L.  42. 

Handwriting. —  Expert  testimony  admissible  as  to  handwriting. 
West  v.  State,  2  Zab.  212. 


278  A  DIGEST  OF  [Part  I. 

Qualification  of  a  handwriting  expert.  Wheeler  &  ~\Yilson  Co.  v. 
Buckhout,  GO  N.  J.  L.  102. 

The  opinion  of  a  handwriting  expert  is  of  little  weight  unless  ac- 
companied by  an  ocular  demonstration.  Gordon's  Case,  50  N.  J.  Eq. 
397,  52  N.  J.  Eq.  317. 

Evidence  of  handwriting  experts  is  of  low  degree.  Life  Ins.  Co.  v. 
Broicn,  30  N.  J.  Eq.   193,  32  N.  J.  Eq.  809. 

Hypothetical  questions. —  Opinion  of  an  expert  as  to  the  cause  of 
an  accident  must  be  elicited  by  hypothetical  questions  unless  he  per- 
sonally knows  all  the  facts.     Traction  Co.  v.  Bliss,  62  X.  J.  L.  410. 

Form  of  hypothetical  questions  put  to  an  expert.  Lindenthal  V. 
Hatch,  61  N.  J.  L.  29. 

The  fact  that  an  expert  has  an  interest  affects  the  weight  of  his 
testimony,  not  its  competency.  New  Jersey  Zinc  Co.  v.  Lehigh  Zinc 
'Co.,  59  N.  J.  L.  189. 

Maryland. 

Subjects  of  expert  testimony. —  Expert  testimony  is  admissible  as 
to  matters  requiring  special  experience  or  study.  Davis  v.  State,  38 
Ml.   15. 

Expert  evidence  is  not  admissible  as  to  matters  which  can  be  de- 
termined without  special  skill  or  study  and  the  jury  can  themselves 
decide  upon  the  facts.  Stumore  v.  Shaw,  68  Md.  11;  Hardy  v. 
Chesapeake  Bank,  51  Md.  562. 

Expert  opinion  is  not  admissible  upon  questions  concerning  which 
the  jury  are  competent  to  form  an  opinion.  Berry  v.  Safe  Deposit 
Co.,  96  Md.  45;  Bank  v.  Manion,  87  Md.  68. 

Qualification  as  an  expert. —  An  experienced  grazier  is  qualified  as 
an  expert  concerning  matters  likely  to  affect  the  health  of  cattle. 
B.  <(■  O.  R.  Co.  v.  Thompson,  in  Md.  76. 

The  trial  court's  ruling  as  to  the  competency  of  one  to  testify  as 
an  expert  is  reviewable  on  appeal.    Dashiell  v.  (h'iffith,  S4  Md.  363. 

One  not  an  expert  is  competent  to  describe  a  person's  physical 
appearance  after  an  injury.  Baltimore,  etc.,  Ry.  Co.  v.  Nugent,  86 
Md.  349. 

Manner  of  eliciting  expert  opinion. —  An  expert  who  has  heard  all 
the  testimony  given  as  to  the  sanity  of  a  person  may  be  asked  his 
opinion  thereon,  on  the  supposition  that  such  testimony  is  true. 
Jerry  v.  Townshend,  9  Md.  145.  But  see  B.  &  O.  R.  Co.  v.  Thompson, 
10  Md.  76. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  279 

When  an  expert  has  heard  the  evidence  which  has  been  given,  he 
may  be  asked  his  opinion  thereon,  assuming  it  to  be  true,  without 
putting  it  in  the  form  of  a  hypothetical  question.  Passenger  Ry. 
Co.  v.  Tanner,  90  Md.  315. 

Hypothetical  questions. —  Hypothetical  questions  asked  experts  are 
improper  unless  they  present  the  facts  fairly  as  they  have  actually 
been  given  in  evidence.     Tlie  Berry  Will  Case,  93  Md.  560. 

Where  the  facts  are  yet  to  be  determined  oy  the  jury,  the  opinion 
of  an  expert  must  be  elicited  by  hypothetical  questions.  Walker  v. 
Rogers,  24  Md.  237;  Jerry  V.  Townshend,  9  Md.   145. 

If  the  facts  as  to  an  injury  are  doubtful  a  physician  may  give  his 
opinion  as  an  expert  upon  a  hypothetical  case.  Turnpike  Co.  V. 
Cassell,  GO  Md.  419. 

As  to  form  of  hypothetical  questions,  see  Williams  v.  State,  64 
Md.  384. 

Medical  experts. —  Passenger  Ry.  Co.  v.  Tanner,  90  Md.  315. 

A  medical  expert  may  testify  as  to  what  in  his  opinion  caused  a 
hole  in  the  skull  of  deceased.     Davis  v.  State,  38  Md.  15. 

An  attending  physician  is  competent  to  testify  as  to  the  capacity 
of  a  testator,  without  stating  the  facts  upon  which  his  opinion  is 
based.     Crockett  v.  Davis,  81  Md.  134. 

A  medical  expert  may  testify  whether  an  abnormal  condition 
could  have  been  caused  by  the  injury  in  question.  United  Railways 
Co.  v.  Seymour,  92  Md.  425. 

Expert  testimony  to  show  a  woman  incapable  of  having  issue  is 
not  admissible,  for  purpose  of  dissolving  a  trust  for  her  children. 
Uicards  v.  Safe  Deposit  Co.,  55  Atl.  384. 

The  testimony  of  a  medical  expert  as  to  the  sanity  of  a  testator 
whom  lie  has  never  seen  is  not  properly  admissible  when  there  is  no 
evidence  before  the  court  indicating  insanity.  Berry  v.  Safe  De- 
posit Co.,  96  Md.  45. 

A  medical  expert  may  testify  as  to  the  effect  of  a  disease  upon 
the  intellectual  faculties.    Berry  v.  Safe  Deposit  Co.,  96  Md.  45. 

A  medical  expert  may  testify  as  to  whether  a  woman  had  ever 
had  a  child.     Jackson  v.  Jackson,  80  Md.  176. 

Expert  opinion  is  admissible  as  to  the  nature  and  effect  of  an 
injury  and  also  as  to  how  it  was  caused.  Williams  v.  State,  64  Md. 
384. 

Laws  of  another  State. —  The  unwritten  law  of  another  State  may 
be  proved  by   the   testimony   of   one   acquainted  with   it.      Green  V. 


280  A  DIGEST  OF  [Part  I. 

Trieber,  3  Md.  11;  Wilson  v.  Carson,  12  Md.  54;  Railroad  Co.  v. 
Glenn,  28  Md.  287 ;  Zimmerman  v.  Helser,  32  Md.  274. 

A  practicing  lawyer  is  qualified  to  testify  as  to  what  are  the 
requisites  of  a  valid  marriage  in  his  State.  Jackson  v.  Jackson,  82 
Md.  17. 

A  lawyer  of  mature  age  who  resides  in  another  State  is  qualified 
as  an  expert  as  to  the  law  of  that  State.  Insurance  Ce.  v.  Cashoic, 
41  Md.  59. 

Pennsylvania. 

Subjects  of  expert  testimony. —  Practical  railroad  men  may  testify 
as  to  safe  methods  of  passing  trains  on  a  one-track  road.  Lewis  v. 
Heiferi,  116  Pa.  628. 

Expert  evidence  as  to  a  defect  in  a  freight  car.  Dooner  v.  Canal 
Co.,  164  Pa.  17. 

Expert  evidence  is  admissible  on  the  question  of  whether  an  ex- 
amination for  coal  has  been  thorough  and  exhaustive.  Wells  v. 
Leek,  151  Pa.  431. 

Expert  opinion  as  to  whether  a  title  is  good  is  not  admissible. 
Murray  v.  Ellis,  112  Pa.  485. 

Expert  or  other  opinion  is  not  admissible  as  to  matters  that  can 
be  adequately  described  to  the  jury  so  that  ordinary  men  can 
estimate  their  true  bearing  upon  the  issue.  Whitaker  v.  Campbell, 
187  Pa.  113;  Musick  v.  Latrobe  Borough,  184  Pa.  375;  Dooner  v. 
Canal  Co.,  164  Pa.  17. 

Science  and  art. —  Expert  opinion  receivable  on  questions  of  science. 
Forbes  V.  Caruthers,  3  Yeates,  527;  O'Mara  v.  Com.,  75  Pa.  424; 
Coyle  v.  Com.,  104  Pa.  117. 

Technical  terms. —  Expert  testimony  as  to  the  meaning  of  techni- 
cal terms.     Miller  v.  Railway  Co.,  179  Pa.  350. 

Insurance  risk. —  Expert  evidence  is  not  admissible  to  show  that 
the  danger  from  fire  has  been  increased.  Fire  Ins.  Co.  V.  Gruver, 
100  Pa.  266. 

An  expert  in  life  insurance  is  competent  as  to  the  relative  hazard 
of  different  occupations.     Hartman  v.  Insurance  Co.,  21  Pa.  466. 

Questions  of  law. —  The  testimony  of  persons  not  lawyers  of  the 
particular  State,  if  they  are  acquainted  with  the  law,  is  admissible. 
American  Life  Ins.  Co.  v.  Rosenagle,  77  Pa.  507. 

A  Maryland  lawyer  is  competent  as  an  expert  on  Maryland  law. 
Bollinger  v.  Gallagher,  163  Pa.  245,  170  Pa.  84. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  281 

Expert  testimony  as  to  the  patentable  character  of  an  invention. 
Haley  v.  Flaccus,  193  Pa.  521. 

In  the  absence  of  proof  of  a  foreign  law,  the  common  law  of  the 
forum  is  applied.     Musser  v.  St  duffer,  178  Pa.  99. 

Handwriting. —  Expert  evidence  as  to  handwriting.  Ulmer  v.  Cent- 
ner, 3  Penny.  453;  Graham  v.  Spang,  16  Atl.  91. 

Expert  opinion  is  admissible  to  prove  handwriting.  Travis  v. 
Brown,  43  Pa.  9;  Fulton  v.  Hood,  34  Pa.  365;  Burkholder  v.  Plank, 
69  Pa.  225;  Ballentine  v.  White,  77  Pa.  20. 

Forgery. —  Expert  testimony  in  forgery  and  counterfeiting.  Pepper 
&  Lewis'  Digest  of  Laws,  "  Criminal  Procedure,"  sec.  85 ;  "  Wit- 
nesses," sec.  7. 

The  evidence  of  a  handwriting  expert  alone  is  not  sufficient  to 
establish  forgery.  Bank  v.  Haldeman.  1  P.  &  W.  161;  Travis  v. 
Brown,  43  Pa.  9. 

Handwriting  experts  permitted  to  testify  to  other  facts  in  con- 
nection with  writing  besides  its  genuineness.  Travis  v.  Brown,  43 
Pa.  9. 

Value.—  Boteler  v.  Phila.,  etc.,  R.  Co.,  164  Pa.  397;  Fire  Ins.  Co. 
v.  Braden,  96  Pa.  81;  Mish  v.  Wood,  34  Pa.  451. 

One  may  become  qualified  to  give  opinion  as  to  value  by  making 
inquiries  for  the  purpose.     O'Brien  v.  Railroad  Co.,  194  Pa.  336. 

Damages. —  Earning  power  of  an  individual  is  not  a  subject  for 
expert  testimony.     Goodhart  v.  Penna.  R.  Co.,  177  Pa.  1. 

Expert  medical  testimony. —  Com.  v.  Buccieri,   153  Pa.   535. 

A  medical  expert  is  competent  on  questions  of  mental  capacity. 
Bitner  v.  Bitner,  65  Pa.  347 ;  Pidcock  v.  Potter,  68  Pa.  342. 

Medical  experts  as  to  the  nature  and  properties  of  powders. 
Mertz  v.  Detweiler,  8  W.  &  S.  376. 

Expert  opinion  as  to  length  of  time  one  might  have  lived  and 
been  useful  to  his  family.     Pennd.  R.  Co.  v.  Henderson,  51   Pa.  315. 

Expert  opinion  is  allowed  as  to  the  permanency  of  an  injury. 
Wilt  v.  Vickers,  8  Watts,  227. 

Evidence  of  physician  that  certain  spots  on  overalls  were  blood 
admissible.  Com.  v.  Crossmire,  156  Pa.  304.  See  McLain  v.  Com., 
99   Pa.   86. 

Whether  a  horse  died  of  fright  or  of  disease.  Piollet  v.  Simmers. 
106  Pa.  95. 


282  A  DIGEST  OF  [Pakt  1. 

Hypothetical  questions. —  Olmsted  v.  Gere,  100  Pa.  127;  Miller's 
Estate,  20  Pittsb.  Leg.  J.  (N.  S.)  428;  Reber  v.  Herring,  115  Pa. 
599. 

Competency  of  experts. —  Perry  v.  Jensen,  142  Pa.  125  (adver- 
tising business)  ;  Ballurd  v.  Erie  R.  Co.,  120  Pa.  141  (construction 
of  railroad)  ;  Hass  v.  Marshall,  14  Atl.  421  (chemist)  ;  Lineoski  v. 
&«sg.  G'ouZ  Co.,  157  Pa.  153  (coal  mining)  ;  Schaeffer  v.  Phila.  £ 
R.  R.  Co.,  1U8  Pa.  209  (mules  injured  in  shipping)  ;  Fraim  v.  Fire 
Ins.  Co.,  170  Pa.  151;  Griswold  v.  Gebbie,  126  Pa.  353  (value  of 
real  estate)  ;  Spring  City  Gaslight  Co.  v.  Penna.,  etc.,  R.  Co.,  167 
Pa.  6   (same)  ;  Struthers  v.  Phila.,  etc.,  R.  Co.,  174  Pa.  291  (same). 

A  woman  who  has  borne  four  children  may  testify  as  to  whether 
a  child  was  fully  developed  at  birth.     Appeal  of  Allen,  99  Pa.   196. 

An  undertaker's  assistant  held  not  to  be  qualified  as  an  expert 
to  testify  as  to  when  rigor  mortis  sets  in  after  death.  Com.  v.  Far 
rcll,  1S7  Pa.  408. 

An  estimate  of  an  experienced  builder  is  competent  evidence  as  to 
the  value  of  carpenter  work.     Warden  v.   Connell,   196  Pa.  281. 

A  surveyor  as  an  expert  on  questions  of  boundary.  Kinley  v. 
Crane,  34  Pa.   146. 

One  expert  may  testify  as  to  the  skill  of  another.  Laros  v.  Com., 
84  Pa.  200. 

The  warden  of  a  penitentiary  allowed  to  testify  that  feigning 
insanity  is  common  among  criminals,  and  that  experts  have  often 
been  deceived.     Com.  v.  Wireback,  190  Pa.  138. 

Questions  for  the  trial  court. —  Whether  a  witness  is  an  expert 
and  whether  the  subject  requires  expert  testimony  are  matters 
mainly  within  the  discretion  of  the  trial  judge.  Ryder  v.  Jacobs, 
182  Pa.  624;  Oil  Co.  v.  Gilson,  63  Pa.  146;  Sorg  v.  St.  Paul,  63  Pa. 
156:  Towboat  Co.  v.  Starrs,  69  Pa.  36;  Stevenson  v.  Coal  Co.,  203 
Pa.  316;  Struthers  v.  Phila.  P.  Co..  174  Pa,  291. 

Expert  opinion  based  upon  the  testimony  of  others. —  Yardley  v. 
Cuthbertson,  108  Pa,  395. 

Expert  testimony  as  to  sanity  not  allowed  when  based  on  the  tes- 
timony of  others  and  the  facts  are  controverted.  Coyle  v.  Com., 
104  Pa.  117. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  283 


Article  50.* 

facts  bearing  upon  opinions  of  experts. 

Facts,  not  otherwise  relevant,  have  in  some  cases  been 
permitted  to  be  proved,  as  supporting  or  being  inconsistent 
with  the  opinions  of  experts. 

Illustrations. 

(a)  The  question  was,  whether  A  was  poisoned  by  a  certain  poison. 
The  fact  that  other  persons,  who  were  poisoned  by  that   poison, 

exhibited  certain  symptoms  alleged  to  be  the  symptoms  of  that  poison, 
were  deemed  to  be  relevant.9 

( b )  The  question  is,  whether  an  obstruction  to  a  harbour  is  caused 
by  a  certain  bank.     An  expert  gives  his  opinion  that  it  is  not. 

The  fact  that  other  harbours  similarly  situated  in  other  respects,  but 
where  there  were  no  such  banks,  10  began  to  be  obstructed  at  about  the 
same  time,  is  deemed  to  be  relevant. 

AMERICAN  NOTE. 

General. 

Authorities. —  See  Com.  v.  Leach,  156  Mass.  99;  Lincoln  v.  Taun- 
ton Mfg.  Co.,  9  Allen    (Mass.),  181;    Tilton  v.  Miller,  66  Pa.  388; 

*  I  have  altered  the  wording  of  this  article,  so  as  to  make  it  less 
absolute  than  it  was  in  earlier  editions.  The  admission  of  such  evi- 
dence is  rare  and  exceptional,  and  must  obviously  be  kept  within  nar- 
row limits.  At  the  time  of  Palmer's  trial  only  two  or  three  cases  of 
poisoning  by  strychnine  had  occurred. 

9  R.  v.  Palmer,  1856,  printed  trial,  p.  124,  &c,  '  Hist.  Crim.  Law," 
iii.  389.  In  this  case  evidence  was  given  of  the  symptoms  attending 
the  deaths  of  Acnes  Senet.  poisoned  by  strychnine  in  1845,  Mrs. 
Serjeantson  Smith,  similarly  poisoned  in  1848,  and  Mrs.  Dove,  mur- 
dered by  the  same  poison  subsequently  to  the  death  of  Cook,  for  whose 
murder  Palmer  was  tried. 

10  Foulkes  v.  Chadd,  1782,  3  Doug.  157. 


284  A  DIGEST  OF  [Part  I. 

City  of  Ripon  v.  Bittel,  30  Wis.  C14,  G19;  City  of  Bloomington  v. 
Shrock,  110  111.  219,  51  Am.  Rep.  678. 

In  an  action  for  injuries  against  a  street  railroad  company,  it  is 
error  to  admit  the  testimony  of  the  physician,  who  examined  the 
passenger  a  few  days  before  the  trial,  which  takes  place  about  five 
years  after  the  alleged  injury,  that  his  condition  as  then  ascertained 
might  have  been  either  a  constitutional  ailment  or  caused  by  some 
external  force.  Maimone  v.  Dry-Dock,  E.  B.  &  B.  R.  Co.,  68  N.  Y. 
Supp.  1073.    See,  also,  Doyle  v.  N.  Y.  Infirmary,  80  N.  Y.  631. 

Reading  books  to  a  medical  expert  is  permissible  in  order  to  test 
his  knowledge.  City  of  Bloomington  v.  Shrock,  110  111.  219;  Davison 
v.  People,  90  111.  221;  Conn.  Hut.  Life  Ins.  Co.  v.  Ellis,  89  111.  516. 

Scientific  books  are  not  admissible  to  contradict  evidence  of  experts. 
Forest  C.  Ins.  Co.  v.  Morgan,  22  111.  App.  198. 

If  an  expert  bases  his  opinion  upon  an  author,  books  may  be  read 
to  contradict  him.      City  of  Bloomington  v.  Shrock,  110  111.  219. 

The  interest  of  a  witness  may  be  shown  to  affect  the  value  of  his 
opinion  evidence.     C.  &  A.  Ry.  Co.  v.  Shannon,  43  111.  339. 

One  who  has  testified  to  value  may  state  the  reasons  for  his  opinion. 
Chicago,  etc.,  R.  R.  Co.  V.  Kern,  9  Ind.  App.  505.  See,  also,  Jones  v. 
Angell,  95  Ind.  376,  378. 

Experts  may  give  the  grounds  of  their  opinions.  Beunk  v.  Valley 
Desk  Co.,  8  Det.  L.  N.  767,  87  N.  W.  793. 


Maryland. 

Medical  books  are  not  admissible  either  to  support  or  to  contra- 
dict an  expert.     Davis  v.  State,  38  Md.  15. 


Pennsylvania. 

Illustrating  text.—  Tilton  v.  Miller,  66  Pa.  388;  Olmsted  v.  Gere, 
100  Pa.  127. 

An  expert  may  be  cross-examined  as  to  details  on  which  his  opin- 
ion is  based.     Harris  v.  Schuylkill  R.  Co.,  141  Pa.  242. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  285 


Article  51. 

opinion  as  to  handwriting.  when  deemed  to  be 
relevant. 

When  there  is  a  question  as  to  the  person  by  whom  any 
document  was  written  or  signed,  the  opinion  of  any  person 
acquainted  with  the  handwriting  of  the  supposed  writer  that 
it  was  or  was  not  written  or  signed  by  him,  is  deemed  to  be 
a  relevant  fact. 

A  person  is  deemed  to  be  acquainted  with  the  hand- 
writing of  another  person  when  he  has  at  any  time  seen  that 
person  write,  or  when  he  has  received  documents  purporting 
to  be  written  by  that  person  in  answer  to  documents  written 
by  himself  or  under  his  authority  and  addressed  to  that 
person,  or  when,  in  the  ordinary  course  of  business,  docu- 
ments purporting  to  be  written  by  that  person  have  been 
habitually  submitted  to  him.11 

Illustration. 

The  question  is.  whether  a  given  letter  is  in  the  handwriting  of  A,  a 
merchant  in  Calcutta. 

B  is  a  merchant  in  London,  who  has  written  letters  addressed  to  A, 
and  received  in  answer  letters  purporting  to  be  written  by  him.  C  is 
B's  clerk,  whose  duty  it  was  to  examine  and  file  B's  correspondence. 
D  is  B's  broker,  to  whom  B  habitually  submitted  the  letters  purporting 
to  be  written  by  A  for  the  purpose  of  advising  with  him  thereon. 

The  opinions  of  B,  C,  and  D  on  the  question  whether  the  letter  is  in 
the  handwriting  of  A  are  relevant,  though  neither  B.  C.  nor  D  ever 
saw  A  write.12 

The  opinion  of  E,  who  saw  A  write  once  twenty  years  ago,  is  also 
relevant.11* 

11  See  Illustration. 

i2Z)oe  v.  Sackermore,   1836.  5   A.  &  E.   705    (Coleridge,  J.);    730 
(Patteson.  J.)  :  739-740  (Denman.  C.  J.). 
i-  r?.  v.  TJnrne  Tooke,  1794,  25  S.  T.  71-72. 


286  A  DIGEST  OF  [Part  I. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  577;  Law- 
son  on  Expert  and  Opinion  Evidence  (2d  ed. ),  tit.  2,  chap.  2;  Ham- 
mond's Case,  2  Greenl.  (Me.)  33,  11  Am.  Dec.  38;  Keith  v.  Lathrop, 
10  Cush.  (Mass.)  453;  People  v.  Molineux,  168  N.  Y.  266. 

In  case  of  handwriting  the  witness  states  the  result  of  his  ob- 
servation or  judgment  as  a  fact  rather  than  an  opinion.  Chamber- 
lain v.  Piatt,  68  Conn.  130. 

One  who  has  become  familiar  with  another's  handwriting  in  the 
course  of  his  business  (e.  g.,  as  clerk  of  a  court),  may  testify,  al- 
though he  has  never  seen  him  write.  Com.  v.  Carey,  2  Pick. 
(Mass.)  47;  Amherst  Bank  v.  Root,  2  Mete.  (Mass.)  522;  Berg 
v.  Peterson,  49  Minn.  420;  Rogers  v.  Ritter,  12  Wall.  (U.  S.)  317; 
Burdell  v.  Taylor,  89  Cal.   613. 

But  a  teller  of  a  bank  does  not  come  within  this  rule,  where  he 
seeks  to  testify  whether  some  of  the  checks  which  went  through  his 
hands  in  the  usual  way  were  forged  or  not.  Brigham  v.  Peters,  1 
Gray  (Mass.),  139. 

One  may  be  a  competent  witness  to  handwriting  who  cannot  read 
or  write.     Foye  v.  Patch,  132  Mass.  105. 

One  who  has  seen  him  write. —  Dig  gin's  Estate,  68  Vt.  198; 
Com.  v.  Hall,  164  Mass.  152;  State  v.  Harvey,  131  Mo.  339;  Karr 
v.  State,   106  Ala.    1;   State  v.   Farrington,  90  la.  673. 

It  is  enough  that  he  has  seen  him  write  once  to  render  the  testi- 
mony competent.  Com.  v.  Kefus,  135  Mass.  533;  Keith  v.  Lathrop, 
10  Cush.  (Mass.)  453;  Brigham  v.  Peters,  1  Gray  (Mass.),  139; 
McNair  v.  Com.,  26  Fa.  St.  388 ;  State  v.  Stair,  87  Mo.  268. 

To  prove  handwriting  of  a  party,  evidence  is  admissible  from  one 
who  has  seen  him  write,  that  he  believes  the  writing  in  question  to 
be  his,  but  cannot  determine  it  to  be  his,  except  by  comparing  it 
with  other  writings  proved  to  be  genuine.  Lyon  v.  Lyman,  9 
Conn.  59. 

One  who  has  received  letters. —  Chaffee  v.  Taylor,  3  Allen 
(Mass.),  598;  Clark  v.  Freeman,  25  Pa.  133;  Thomas  v.  State,  103 
Ind.  419;  Riggs  v.  Powell,  142  111.  453;  Empire  Mfg.  Co.  v.  Stuart, 
46  Mich.  482.     Compare  White  v.  Tolliver,  110  Ala.  300. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  287 

It  is  not  enough  that  he  has  seen  letters  addressed  to  others. 
Neines  v.  Perry,  113  Mass.  274;  Phila.,  etc.,  R.  Co.  v.  Hickman, 
28  Pa.  318;   Gibson  v.  Troiobridge  Co.,  96  Ala.  357. 

On  the  question  of  whether  or  not  the  signature  to  a  bill  of  sale 
is  in  the  handwriting  of  a  certain  party,  a  witness,  after  testifying 
that  he  is  familiar  with  this  party's  handwriting  by  virtue  of 
having  received  numerous  letters,  from  him,  may  be  asked  whether 
or  not  this  signature  is  that  of  such  party.  Gross  v.  Sormani, 
64  N.  Y.  Supp.  300,  50  App.  Div.  531. 

A  person  is  deemed  to  be  acquainted  with  the  handwriting  of 
another  so  as  to  be  able  to  give  his  opinion  thereon  when  he  has 
received  letters,  subsequently  acknowledged  by  word  or  acts,  to 
be  genuine  by  the  person  whose  handwriting  is  questioned.  Johnson 
v.  Daoerne,  19  Johns.  134. 

Handwriting  may  be  proved  by  one  who  has  seen  letters  or  who  has 
seen  a  party  write.    Woodford  v.  McClenahan,  4  Gilm.  85. 

Expert  evidence  is  admissible  upon  questions  of  forgery.  Pale  v. 
People,  3  Gilm.  644. 

Handwriting  may  be  proved  by  the  opinion  of  experts.  Bowen  v. 
A.  Nat.  Bank,  39  111.  App.  579;  Rogers  v.  Tyley,  144  111.  652. 

As  to  opinions  with  reference  to  any  writing,  see  Masscy  v.  F. 
Nat.  Bank  of  Virginia,  104  111.  327;  Snyder  v.  McKeever,  10 
Brad.  188. 

One  who  has  seen  a  party  write  may  testify  that  he  believes  that 
an  instrument  was  signed  by  him.     Fash  v.  Blake,  38  111.  363. 

One  who  has  seen  a  party  write  but  once  is  competent.  Cross  v. 
People,  47  111.  152. 

One  may  have  sufficient  knowledge  to  testify  as   to  handwriting 
even  though  he  has  not  seen  the  party  write.     Board  of  Trustees 
Hisenheimer,  78  111.  22. 

One  who  has  received  letters  may  testify.  Riggs  v.  Powell,  142  111. 
453. 

Form  of  question. — A  witness  as  to  handwriting  should  be  asked 
first  if  he  is  acquainted  with  the  handwriting,  then  the  manner  in 
which  he  became  acquainted.    Pate  v.  People,  3  Gilm.  643. 

Insufficient  basis  of  knowledge. — A  letter  purporting  to  come  from 
one  and  signed  in  his  name  will  not  furnish  a  sufficient  basis  of 
knowledge   to  permit  the   one  who  received  such   letter  to   give  an 


288  A  DIGEST  OF  [Part  I. 

opinion  respecting  the  genuineness  of  the  signature  of  the  putative 
writer  to  another  instrument,  unless  the  one  whose  name  was  signed 
to  the  letter  in  some  manner  subsequently  acknowledged  the  signa- 
ture to  be  his.     Talbot  v.  Hedge,  5  Ind.  App.  555,  558. 

Testimony  of  a  witness  who  stated  that  he  used  to  be  acquainted 
with  the  decedent's  signature,  but  had  not  seen  it  for  several  years ; 
that  it  looked  like  and  probably  might  be  her  signature;  that  it  was 
probably  her  signature;  that  it  had  a  general  likeness  to  her  signature 
as  he  remembered  it,  shows  such  acquaintance  with  the  signature 
of  the  decedent  as  to  enable  him  to  have  an  impression  or  belief 
amounting  practically  to  an  opinion,  the  genuineness  of  the  signature 
being  disputed.     Talbot  v.  Hedge,  5  Ind.  App.  555,  55G. 

New   Jersey. 

One  who  has  corresponded  with  a  person  is  a  competent  witness 
as  to  his  handwriting.     West  v.  State,  2  Zab.  212. 

But  not  if  he  has  merely  seen  writings  addressed  to  others.  Gold- 
smith v.  Bane,  3  Hal.  87. 

One  who  has  seen  a  person  write  is  a  competent  witness  as  to 
his  handwriting.  West  v.  State,  2  Zab.  212;  Cook  v.  Smith,  30 
N.  J.  L.  387. 

But  not  when  he  saw  the  person  write  for  the  purpose  of  there- 
after being  a  witness.     Whitmore  v.  Corey,  1  Harr.  267. 

Maryland. 

A  witness  is  competent  if  he  has  seen  the  party  write  once,  or  if 
he  has  corresponded  with  such  party.  Smith  v.  Walton.  8  Gill,  77; 
Kdrlen  v.  Bennett,  8  Gill.  87. 

In  attacking  a  witness'  opinion  as  to  handwriting,  i;  is  permis- 
sible to  prove  that  the  party's  style  of  writing  has  changed.  Arm- 
strono  v.    Thurston,   11   Md.    14S. 

Pennsylvania. 

Authorities. —  If  the  witness  says  that  he  believes  the  handwriting 
to  be  that  of  the  person  in  question,  his  evidence  is  admissible. 
Watson  v.  Brewster,  1  Pa.  381:  Cabarga  v.  Seeger,  17  Pa.  514; 
Shitler  v.  Bremer,  23  Pa.  413:  Clark  v.  Freeman,  25  Pa.  133. 

It  is  sufficient  if  the  witness  testifies  that  "he  knows  a  paper  to 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  289 

be  the  handwriting  of  the  party "  if  the  adverse  party  does  not 
choose  to  cross-examine.     Whittier  v.  Gould,  8  Watts,  485. 

An  opinion  may  go  to  the  jury  even  though  it  be  a  doubtful  one. 
SMtler  v.  Bremer,  23  Pa.  413. 

A  witness  may  not  testify  as  to  his  knowledge  of  a  signature 
made  by  making  a  mark.     Shinkle  v.  Crock,  17  Pa.  159. 

Preliminary  proof. —  There  must  be  preliminary  proof  that  a  wit- 
ness knows  the  handwriting  before  he  may  give  his  opinion.  Slay- 
maker  v.  Wilson.  1  P.  &  W.  216;  Taylor  v.  Sutherland,  24  Pa.  333; 
Railroad  Co.  v.   Hickman,  28  Pa.  318. 

Witness  competent  if  he  has  seen  person  write. —  It  is  enough  that 
he  has  seen  him  write  once  to  render  the  testimony  competent.  Mc- 
yair  v.  Com.,  26  Pa.  388. 

Witness  competent  who  had  seen  person  write  his  name  twice 
thirty-two  years  before  and  once  twenty-three  years  before.  Wilson 
v.  Van  Leer,  127  Pa.  371. 

A  witness  is  not  competent  merely  because  he  says  he  lias  often 
seen  a  person's  signature  on  letters  and  papers.  Allan  v.  Baliner, 
4  Pa.  Co.  Ct.   16. 

An  expert  is  not  competent  when  the  basis  of  his  testimony  is 
that  he  observed  the  person  write  several  times  for  the  purpose  of 
testifying  later.     Reese  v.  Reese,  90  Pa.  89. 

One  who  has  received  letters. —  Clark  v.  Freeman,  25  Pa.   133. 

Witness  who  has  become  acquainted  with  handwriting  through  an 
official  correspondence  is  competent  to  testify  as  to  its  genuineness. 
Com.  v.  Smith,  6  S.  &  R.  568;   U.  S.  v.  Simpson,  3  P.  &  W.  437. 

It  is  not  enough  that  he  has  seen  letters  addressed  to  others. 
Phila.,  etc.,  R.  Co.  v.  Hickman,  28  Pa.  318. 

Article  52. 

comparison  of  handwritings. 

Comparison  of  a  disputed  handwriting  with  any  writing 
proved  to  the  satisfaction  of  the  judge  to  be  genuine  is  per- 
mitted to  be  made  by  witnesses,  and  such  writings,  and  the 
evidence  of  witnesses  respecting  the  same,  may  be  submit- 
ted to  the  Court  and  jury  as  evidence  of  the  genuineness 
19 


290  A  DIGEST  OF  [Pabt  I. 

or  otherwise  of  the  writing  in  dispute.  This  paragraph 
applies  to  all  courts  of  judicature,  criminal  or  civil,  and  to 
all  persons  having  by  law,  or  by  consent  of  parties,  author- 
ity to  hear,  receive,  and  examine  evidence.14 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  579  et  seq.; 
15  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  272;  State  v. 
Thompson,  80  Me.  194;  State  v.  Hastings,  53  N.  H.  452;  Rowell  v. 
Fuller,  59  Vt,  688;  Gen.  Stats,  of  Rhode  Island,  chap.  246,  sec.  44. 
Substantially  the  English  doctrine  is  held  in  Hauriot  v.  Sherwood, 
82  Va.  1;  Andrews  v.  Hayden's  Admr.,  88  Ky.  455;  Powers  v. 
McKenzie,  90  Tenn.  167;  Wilson  v.  Beauchamp,  50  Miss.  24;  Koons 
v.  State,  36  0.  St.  195;  Saukey  v.  Cook,  82  la.  125;  State  v.  Zim- 
merman, 47  Kan.  242;  Marshall  v.  Hancock,  80  Cal.  82;  Holmes 
v.  Goldsmith,  147  U.  S.  150;  Costello  v.  Croicell,  139  Mass.  588; 
Costello  v.  Crowell,  133  Mass.  352;  Com.  v.  Andreas,  143  Mass.  23; 
People  v.  Molineux,  168  N.  Y.  267. 

Papers  may  be  admitted  in  some  States  for  the  sole  purpose  of 
comparison.  State  v.  Thompson,  80  Me.  194,  6  Am.  St.  Rep.  172,  13 
Atl.  892;  Com.  v.  Allen,  128  Mass.  46.  Contra,  Snider  v.  Burks, 
84  Ala.  53;  People  v.  Parker,  67  Mich.  222;  State  v.  Thompson,  132 
Mo.  301;  Himrod  v.  Gilman,  147  111.  293;  Hazleton  v.  Union  Bank, 
32  Wis.  34;  Stokes  v.   U.  S.,  157  U.  S.  187. 

On  cross-examination  a  person's  signature,  written  in  court,  may 
sometimes    be    used.      Chandler  v.  Le  Barron,    45    Me.   534.      But 

14  28  Vict.  c.  18,  s.  8,  re-enacting  17  &  18  Vict.  c.  125,  s.  25,  now  re- 
pealed. See  R.  v.  Silverlock,  [1894],  2  Q.  B.  766,  where  it  was  held 
that  the  solicitor  for  the  prosecution  was  a  proper  witness  to  compare 
handwriting  proved  to  be  that  of  the  prisoner  with  that  in  which 
documents  produced  by  the  prosecution  were  written.  It  seems  to  be 
the  case  that  such  a  witness  must  be  "  skilled  "  or,  as  Lord  Russell 
said,  "  peritus;"  but  he  need  not  "  have  become  peritus  in  the  way  of 
his  business  or  in  any  definite  way;"  vulgo,  he  need  not  be  a  profes- 
sional expert. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  291 

only  in  cross-examination.  Com.  v.  Allen,  128  Mass.  46;  King  v. 
Donahue,  110  Mass.  155;  U.  S.  v.  Mullaney,  32  Fed.  Rep.  370;  Brad- 
ford v.  People,  22  Col.  157. 

Whether  the  court  has  authority  to  require  a  party  to  write  his 
name  in  court,  in  order  that  the  jury  may  compare  writings,  quaere. 
It  probably  has  such  power.  But  where  the  disputed  writing  had 
so  faded  out  that  it  could  not  be  traced,  so  that  it  could  not  be 
seen  by  the  jury,  but  only  described  to  them,  it  was  held,  that  it. 
was  not  a  case  for  such  an  order.     Smith  v.  King,  62  Conn.  521,  522.. 

In  a  libel  suit,  to  prove  the  libel  to  be  in  the  defendant's  hand- 
writing, experts,  as  cashiers  of  banks,  may  be  admitted  to  testify 
that  they  have  compared  the  paper  with  other  writings  proved  to 
be  his,  and  that,  in  their  opinion,  the  paper  was  written  by  him,  in 
a  disguised  hand.     Lyon  v.  Lyman,  9  Conn.  59. 

Letter-press  copies  cannot  be  used  in  comparison.  Com.  v.  East- 
man,  1   Cush.    (Mass.)    189;   Cohen  v.   Teller,  93  Pa.  St.   123. 

But  photographic  copies  may  when  the  originals  are  in  court. 
Marcey  v.  Barnes,  169  Mass.  161.  Compare  Loioe  v.  Parkersburgh, 
etc.,  R.   Co.,  39  Md.  36. 

Comparison  of  a  disputed  signature  may  be  made  with  writings 
admittedly  genuine  and  introduced  without  objection  as  evidence 
bearing  on  the  issues  of  the  case.  Judgment  (1895),  35  N.  Y. 
Supp.  909,  90  Hun,  374,  affirmed.  Shaw  v.  Bryant,  53  N'.  E.  1132, 
157  N.  Y.  715. 

So  with  exhibits  introduced  by  the  defendant  "  to  show  signa- 
tures only "  when  he  testifies  on  the  cross-examination  that  these 
are  genuine.  Judgment  (1895),  35  N.  Y.  Supp.  909,  90  Hun,  374, 
affirmed.     Shaw  v.  Bryant,  53  N.  E.   1132,   157  N.  Y.  715. 

In  order  to  prove  handwriting  by  comparison  with  a  standard,  the 
standard  must  be  properly  in  evidence.  Martin  v.  Leslie,  93  111. 
App.  44. 

Papers  may  be  admitted  in  some  States  for  the  sole  purpose  of 
comparison.     Himrod  v.  Oilman,  147  111.  293. 

Experts  may  testify  as  to  alteration  of  a  writing.  Rass  v.  Sebas- 
tian, 160  111.  602. 

A  disputed  signature  may  be  compared  with  another  signature. 
N.  F.  Ins.  Co.  v.  Sweet,  46  111.  App.  598. 

Testimony  as  to  identity  of  handwritings  is  admissible.  Groff  v. 
Mutual  Life  Ins.  Co.,  92  111.  App.  207. 


292  A  DIGEST  OF  [Part  I. 

Evidence  to  prove  the  signature  to  papers,  with  a  view  to  com- 
parison by  experts  with  the  signature  in  dispute,  is  not  admissible. 
Hazzard  v.  Yickery,  78  Ind.  04,  66;  Shorb  v.  Kinzie,  100  Ind.  429, 
431;  Walker  v.  Stull,  121  Ind.  436,  440;  Swalis  v.  Grubbs,  126  Ind. 
106,  110;  Newlon  v.  Teyner,  126  Ind.  466,  472;  Merritt  v.  Straw, 
6  Ind.  App.  360,  364 ;  Leak  v.  Thorn,  13  Ind.  App.  335. 

Writings  cannot  be  admitted  for  the  purpose  of  comparison  only. 
Shank  v.  Butsch,  28  Ind.  19;  Huston  v.  Schindler,  46  Ind.  38. 

The  Supreme  Court  will  not  make  a  comparison  of  signatures. 
Burdick  v.  Hunt,  43  Ind.  381. 

Comparisons  may  be  made  partly  out  of  court.  Campbell  v. 
Conner,  15  Ind.  App.  23. 

The  alteration  of  a  writing  may  be  proved  by  expert  testimony. 
Nelso?i  v.  Johnson,  18  Ind.  329. 

The  standard. —  In  the  comparison  of  handwriting,  the  standard 
must  be  conceded  to  be  genuine.  Bowen  v.  Jones,  13  Ind.  App.  193; 
Merritt  v.  Straic,  6  Ind.  App.  360. 

A  witness  who  has  testified  that  a  signature  was  a  forgery  cannot 
be  shown  purported  signatures  and  then  asked  whether,  with  bis 
present  knowledge,  he  regards  the  writing  as  a  forgery.  McDonald 
v.  McDonald,  142  Ind.  55.    See  Shorb  v.  Kinzie,  80  Ind.  500,  502. 

The  standard  of  comparison  must  be  connected  with  the  case. 
White  Co.  v.  Gordon,  124  Ind.  495;  Jones  v.  State,  60  Ind.  241. 

Writings  in  evidence  which  are  confessedly  genuine  may  be  used 
by  the  jury  as  the  standard  of  comparison.  Shorb  v.  Kinzie,  100 
Ind.  429;  Chance  v.  Gravel  Road  Co.,  32  Ind.  472;  White  Co.  v. 
Gordon,  124  Ind.  495. 

Experts  may  express  an  opinion  on  comparing  a  signature  with  one 
of  known  authenticity.  Forgey  v.  Bank,  66  Ind.  123;  Walker  v. 
Steele,  121  Ind.  436;  Burdick  v.  Hunt,  43  Ind.  381;  Chance  v.  Gravel 
Road  Co.,  32  Ind.  472 ;  Huston  v.  Schindler,  46  Ind.  38. 

Or  proved  to  have  been  respected,  treated,  and  acted  upon  as  such 
by  all  parties.     Clark  v.  Wyatt,  75  Ind.  271. 

A  microscopic  enlargement  of  a  disputed  signature,  where  the 
original  is  in  court,  and  where  it  is  not  proposed  to  compare  it  with 
enlarged  copies  of  signatures  admitted  to  be  genuine,  cannot  be  sub- 
mitted to  the  jury  for  inspection.  White  Seicing,  etc.,  Co.  v.  Gordon, 
124  Ind.  495,  498. 

As  to  the  cross-examination  of  witnesses,  who  testify  as  to  the  com- 
parison of  handwritings,  see  Johnston  Harvester  Co.  v.  Miller,  72 
Mich.  265. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  293 

Comparison  is  not  allowed  with  papers  not  in  evidence.  Howard 
v.  Patrick,  43  Mich.  121. 

Papers  cannot  be  admitted  in  evidence  for  the  sole  purpose  of 
making  comparisons.  People  v.  Parker,  67  Mich.  222;  Dietz  v.  Bank, 
69  Mich.  287. 

The  standard  must  be  proved  to  be  the  writing  of  the  persons  whose 
handwriting  is  in  question.     Van  Sickle  v.  People,  29  Mich.  61. 

Where  an  accommodation  maker  sued  upon  a  note  and  defends  upon 
the  ground  that  it  has  been  altered  by  filling  in  a  space,  which  was 
left  blank  by  him,  it  is  an  error  to  allow  him  to  compare  by  intro- 
ducing in  evidence  other  notes  subsequently  written  for  the  jury  "a 
notice.     Weidman  v.  Symes,  116  Mich.  619. 

New    Jersey. 

Authorities. —  Handwriting  may  be  proved  by  inspection  and  by  a 
comparison  by  an  expert.     Yeomans  v.  Petty,  40  N.  J.  Eq.  495. 

A  witness  must  be  allowed  to  see  enough  of  a  writing  to  make  a 
fair  comparison,  though  he  need  not  see  all  of  it.  West  v.  State, 
2  Zab.  212,  240. 

The  jury  not  allowed  to  compare  handwriting.  Crissman  v. 
Schoonover,  Pen.  525. 

Statute. —  Comparison  may  be  made  by  witnesses,  but  the  writing 
used  for  comparison  must  have  been  made  prior  to  the  dispute. 
G.   S.   1895,   "Evidence,"   19. 

Maryland. 

Authorities. —  See  as  to  allowing  comparison  as  a  basis  for  expert 
opinion,  Code,  art.  35,  sec.  6. 

Earlier  cases  not  allowing  such  opinion  are:  Herrick  v.  Sworn- 
ley,  56  Md.  439;  Killer  v.  Johnson,  27  Md.  6;  Tome  v.  Railroad  Co., 
39  Md.  36;   Armstrong  v.  Thurston,  11   Md.  148. 

Direct  comparison  of  hands  not  allowed,  but  a  genuine  writing 
may  be  handed  to  a  witness  to  refresh  his  recollection.  Smith  v. 
Walton,  8  Gill,  77. 

Handwriting  admittedly  genuine  may  be  handed  to  a  witness  who 
has  given  his  opinion  as  to  the  genuineness  of  another  writing  in 
order  to  test  that  opinion.     Bank  v.  Armstrong,  66  Md.  113. 

Letters  admittedly  genuine  may  be  given  to  the  jury  for  compari- 
son, but  such  letters  should  be  selected  for  that  purpose  whose  con- 


294  A  DIGEST  OF  [Pabt  I. 

tents  are  not  likely  to  influence  the  jury  in  any  way.  Gambrill  v. 
Schooley,  95  Md.  260. 

The  jury  may  compare  a  disputed  handwriting  with  one  admit- 
tedly genuine  already  in  evidence  for  another  purpose.  Williams  v. 
Drexel,  14  Md.  566. 

As  to  photographic  copies  when  the  originals  are  in  court,  see 
Lowe  v.  Parkersburgh  R.  Co.,  39  Md.  36. 

Statute. —  Witnesses  are  allowed  to  make  comparison  of  writings. 
P.  G.  L.  1888,  art.  35,  sec.  6. 

Pennsylvania. 

Authorities. —  Genuine  signatures  are  admissible  for  use  by  the 
jury  in  comparing.     Ultner  v.   Centner,  3  Penny.  455. 

Comparison  of  handwriting  can  be  made  only  by  the  jury.  Hay- 
cock v.  Greup,  57  Pa.  438;  Clayton  v.  Hiebert,  3  Brewst.  176;  Au- 
mick  v.  Mitchell,  82  Pa.  211. 

Comparisons  of  genuine  writings  with  the  one  questioned  may 
be  made  by  the  jury,  but  not  by  experts.  Rockey's  Estate,  155  Pa. 
453. 

Comparison  allowed  on  a  question  of  forgery.  Gujfey  v.  Deeds, 
29  Pa.  378. 

Comparison  allowed  as  corroborative  evidence.  Bank  v.  Whiir- 
hill,  10  S.  &  R.  110;  Bank  v.  Haldeman,  1  P.  &  W.  161;  Callan  v. 
Gaylord,  3  Watts,  321;  Baker  v.  Haines,  6  Whart.  284;  Travis  v. 
Brown,  43  Pa.  9. 

A  witness  may  refresh  his  memory  of  handwriting  by  inspecting 
a  genuine  paper,  but  he  must  testify  independently  of  the  compari- 
son.    McXair  v.  Com.,  26  Pa.  388. 

Comparison  of  handwriting  is  not  alone  sufficient  evidence  if 
better  is  obtainable.  Vickroy  v.  Skelley,  14  S.  &  R.  372:  O'Connor 
v.  Layton,  2  Am.  L.  Reg.  120;  Leslie  v.  Heald,  3  Phila.  55. 

Testimony  that  a  signature  is  genuine,  based  on  mere  compari- 
son, is  not  admissible.  Aumick  v.  Mitchell,  82  Pa.  211;  Berryhill 
v.  Kirchner.  96  Pa.  4S9 ;   Rockey's  Estate,   155  Pa.  453. 

The  test  papers. —  Writing  offered  as  a  test  for  comparison  must 
be  proved  conclusively  to  be  genuine.  Baker  v.  Haines.  6  Whart. 
284;  Depne  v.  Place.  7  Pa.  428;  Travis  v.  Broion,  43  Pa.  9. 

A  check  is  not  admissible  in  evidence  merely  on  the  testimony 
of  a  witness  who  savs  the  signature  looked  like  that  of  the  person 


Chap.  V.]  TEE  LAW  OF  EVIDENCE.  295 

it  represented,  especially  as  a  test  paper.  Fullam  v.  Rose,  181  Pa. 
138. 

A  letter-press  copy  of  handwriting  cannot  be  used  for  compari- 
son.    Cohen  v.  Teller,  93  Pa.  123. 

Nor  may  photographic  copies  be  so  used.  Vanderslice  v.  Snyder, 
4  Pa.  Dist.  424;  Ulmer  v.  Gentner,  3  Penny.  453. 


Article  53. 

opinion  as  to  existence  of  marriage,  when  relevant. 

When  there  is  a  question  whether  two  persons  are  or  are 
not  married,  the  facts  that  they  cohabited  and  were  treated 
by  others  as  man  and  wife  are  deemed  to  be  relevant  facts, 
and  to  raise  a  presumption  that  they  were  lawfully  married, 
and  that  any  act  necessary  to  the  validity  of  any  form  of 
marriage  which  may  have  passed  between  them  was  done ; 
but  such  facts  are  not  sufficient  to  prove  a  marriage  in  a 
prosecution  for  bigamy  or  in  proceedings  for  a  divorce,  or 
in  a  petition  for  damages  against  an  adulterer.15 

AMERICAN  NOTE. 
General. 

Authorities. —  Greenleaf  on  Evidence  (15th  ed.),  vol.  1,  sec.  107; 
vol.  2,  sec.  462  et  seq.j  Abbott's  Trial  Evidence  (2d  ed.),  p.  104. 

First  paragraph  of  the  text.  Young  v.  Foster,  14  N.  H.  114, 
118;  State  v.  Sherwood,  68  Vt.  419  (citing  this  article);  Green- 
wait  v.  McEnelley,  85  Pa.  St.  352;  Maryland  v.  Baldwin,  112  U.  S. 

15  Morris  v.  Miller,  1767,  4  Burr.  2057;  Birt  v.  Barlow,  1779, 
1  Doug.  170;  and  see  Catherwood  v.  Caslon,  1844,  13  M.  &  W.  261. 
Compare  R.  v.  Mainwariny,  1856,  Dear.  &  B.  132.  See,  too,-  De 
Thoren  v.  A.  G.,  1876,  1  App.  Cas.  686;  Piers  v.  Piers,  1849,  2  H.  L. 
Ca.  331.  Some  of  the  references  in  the  report  of  De  Thoren  v.  A.  G. 
are  incorrect. 


296  A  DIGEST  OF  [Part  I. 


490;  Wallace's  Case,  49  N.  J.  Eq.  530;  Peet  v.  Peet,  52  Mich.  464; 
White  v.  White,  82  Cal.  427;  Blackburn  v.  Crawford,  3  Wall.  (U. 
S.)  175,  191;  Budington  v.  Munson,  33  Coan.  487;  Erwin  v.  English, 
61  Conn.  509;  >S'fa£e  v.  Schweitzer,  57  Conn.  537,  538;  Bammick 
v.  Bronson,  5  Day  (Conn.),  293;  Means  v.  Welles,  12  Mete.  (Mass.) 
356;  Aewburyport  v.  Boothbay,  9  Mass.  414;  Com.  V.  floZf,  121  Mass. 
61;  Coot.  v.  Barley,  14  Gray  (Mass.),  411. 

Marriage  cannot  be  proven  by  reputation  in  criminal  prosecutions 
for  bigamy,  incest,  adultery,  unlawful  cohabitation  or  criminal  con- 
versation. State  v.  Bodgskins,  19  Me.  155;  Green  v.  State,  21  Fla. 
403;  Butchins  v.  Kimmell,  31  Mich.  126;  Biler  v.  People,  156  111. 
577;  Com.  v.  Littlejohn,  15  Mass.  163;  Com.  v.  Norcross,  9  Mass. 
492;  Stofe  v.  Roswell,  6  Conn.  446;  Bammick  v.  Bronson,  5  Day 
(Conn.),  293. 

But  aliter  in  prosecution  for  nonsupport.  State  v.  Schweitzer, 
57    Conn.   537,   538. 

Evidence  that  the  relation  between  a  man  and  a  woman  is  re- 
puted to  be  adulterous  is  not  admissible  against  proof  of  a  formal 
marriage.     Northrop  v.  Knowles,  52  Conn.  523. 

Any  one  (not  simply  a  member  of  the  family),  is  a  competent 
witness  to  prove  repute.     Knower  v.  Wesson,  13  Mete.   (Mass.)    143. 

When  marriage  is  in  issue  on  a  writ  of  right,  it  may  be  shown  by 
cohabitation  and  repute.     Mears  v.   Welles,   12  Mete.    (Mass.)    356. 

The  repute  may  be  in  another  country.  Com.  v.  Johnson,  10 
Allen    (Mass.),  196. 

The  presumption  of  marriage  from  evidence  of  cohabitation  and 
repute  is  rebuttable.     Clayton  v.   Wardell,  4  N.  Y.   230. 

Marriage  cannot  be  proven  by  reputation  in  criminal  prosecutions 
for  bigamy,  incest,  adultery,  unlawful  cohabitation,  or  criminal  con- 
versation. Eayes  v.  People,  25  N.  Y.  390.  But  as  to  evidence  of 
reputation  in  divorce  suits,  see  Collins  v.  Collins,  80  N.  Y.  10. 

As  to  proof  of  marriage  by  admissions  in  both  civil  and  criminal 
cases,  see  Eisenlord  v.  Clum,  126  N.  Y.  552,  562. 

Marriage  may  be  shown  by  proof  of  living  together  as  husband 
and.  wife  for  a  series  of  years,  always  recognizing  each  other  as 
such,  and  being  so  treated  and  reputed  in  the  community.  The  court 
or  jury  trying  the  case  will  judge  of  the  sufficiency  of  the  evidence. 
Bruner  v.  Briggs,  33  Ohio  St.  478. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  297 

Or  by  reputation  that  they  lived  together  as  husband  and  wife. 
Stewart  v.  Welch,  41  Ohio  St.  483,  497. 

Where  a  man  and  woman  live  together  as  husband  and  wife  his 
admissions  are  competent  evidence  to  prove  marriage.  Wolverton 
v.  State,   16  Ohio,  173;   Stanglein  v.  State,  17  Ohio  St.  453. 

Marriage  may  be  shown  by  reputation.  Miller  v.  White,  80  111. 
580;  Lowry  v.  Coster,  91  111.  582. 

Marriage  may  be  inferred  from  the  conduct  of  the  parties.  Port 
v.  Port,  70  111.  484. 

Marriage  may  be  presumed  from  cohabitation  and  repute.  Cart- 
right  v.  M'Goican,  121  111.  388,  395. 

Marriage  is  not  established  by  proof  of  cohabitation  alone.  Wyatt 
v.  Wyatt,  44  111.  473.  Compare  Miller  v.  White,  80  111.  580;  Hiler 
v.  People,  156  111.  511. 

Bigamy  —  Criminal  conversation.— In  bigamy  prosecution  and  prose- 
cution for  criminal  conversation,  actual  marriage  must  be  proved. 
Miller  v.  White,  80  111.  580. 

Marriage  cannot  be  proven  by  reputation  in  criminal  prosecutions 
for  bigamy,  incest,  adultery,  unlawful  cohabitation,  or  criminal  con- 
versation.    Hiler  v.  People,  156  111.  511. 

The  marriage  license  is  admissible  upon  a  bigamy  trial.  King  v. 
Dale,  1  Scam.  513;  Jackson  v.  People,  2  Scam.  231. 

Opinion  as  to  marriage  —  First  paragraph  of  the  text. —  Peet  v. 
Peet,  52  Mich.  464. 

Reputation  is  admissible  as  tending  to  establish  a  marriage.  Peet 
v.  Peet,  52  Mich.  464;  Proctor  v.  Bigelow,  38  Mich.  282;  Perry  v. 
Love  joy,  49  Mich.  529;  Leonard  v.  Pope,  27  Mich.  145. 

A  marriage  is  shown  prima  facie  by  proof  of  a  present  agreement 
followed  by  cohabitation.  Hutchins  v.  Kimmell,  31  Mich.  126; 
Webster  v.  Webster,  96  U.  S.  76  (Mich,  case)  ;  Peet  v.  Peet,  52  Mich. 
464. 

Marriage  cannot  be  proven  by  reputation  in  criminal  prosecutions 
for  bigamy,  incest,  adultery,  unlawful  cohabitation,  or  criminal  con- 
versation.   Hutchins  v.  Kimmell,  31  Mich.  126. 

New  Jersey. 

First  paragraph  of  the  text. — Wallace's  Case,  49  N.  J.  Eq.  530. 
Marriage  may  be  established  by  proof  of  open  cohabitation   and 
repute.     Costill  v.  Hill,  55  N.  J.  Eq.  679. 


■298  A  DIGEST  OF  [Pabt  I. 

The  presumption  of  marriage  arising  from  repute  and  cohabita- 
tion is  rebuttable.     Collins  v.   Voorhees,  47  N.  J,  £q.  555. 

Maryland. 

Authority. —  Crockett  v.  Davis,  81   Md.   134. 

Marriage  may  be  proved  by  general  reputation,  cohabitation,  and 
acknowledgment,  except  in  cases  for  criminal  conversation  and  for 
bigamy.     Jackson  v.  Jackson,  80  Md.   176. 

A  witness  cannot  be  asked  whether  in  his  opinion  certain  persona 
were  married  or  not.     Jackson  v.  Jackson,  80  Md.   176. 

A  religious  ceremony  will  be  presumed  on  proof  of  general  repu- 
tation, cohabitation,  and  acknowledgment.  Richardson  v.  Smith, 
80  Md.  89. 

Pennsylvania. 

Authorities. —  Greenwalt  v.   McEnelley,   85   Pa.   352. 

The  presumption  of  marriage  arises  from  proof  of  cohabitation 
and  repute,  but  is  rebuttable.  Senser  v.  Bower,  1  P.  &  W.  450; 
Grimm's  Estate,  131  Pa.  199. 

To  establish  the  fact  that  deceased  was  claimant's  wife  the  fol- 
lowing evidence  was  admitted: 

An  official  certificate  of  the  birth  of  a  child  naming  the  parties 
as  husband  and  wife ; 

Checks  indorsed  by  deceased  in  her  married  name; 

A  letter  addressed  to  deceased  as  a  married  woman; 

A  life  insurance  policy  describing  deceased  as  "his  wife;" 

A  deed  to  deceased  in  her  married  name; 

Repute  in  the  neighborhood; 

The  fact  that  children  by  a  former  wife  treated  deceased  as  their 
mother.     Strauss'  Estate,  168  Pa.  561. 

Reputation  in  the  family  is  admissible  to  prove  marriage.  Pick- 
ens' Estate,  163  Pa.  14. 

Marriage  record. —  Certified  copy  of  the  record  made  prima  facie 
evidence.     Pepper  &  Lewis'  Digest  of  Laws.  "  Marriage,"  sec.  14. 

Article  54. 

grounds  of  opinion,  when  deemed  to  be  relevant. 

Whenever  the  opinion  of  any  living  person  is  deemed  to 
be  relevant,  the  grounds  on  which  such  opinion  is  based  are 
also  deemed  to  be  relevant. 


Chap.  V.]  THE  LAW  OF  EVIDENCE.  299 

Illustration. 

An  expert  may  give  an  account  of  experiments  performed  by  him  for 
the  purpose  of  forming  his  opinion. 

AMERICAN  NOTE. 
General. 

Authorities. —  Lawson  on  Expert  and  Opinion  Evidence  (2d  ed.), 
p.  209  et  seq.;  12  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed. ),  p.  489; 
Woodman  v.  Dana,  52  Me.  9;  Steam  Mill  Co.  v.  Water  Power  Co.,  78 
Me.  274;  Sexton  v.  North  Bridgeicater,  116  Mass.  200;  Leslie  v.  Gran- 
ite R.  R.  Co.,  172  Mass.  468,  52  N.  E.  542;  Hawkins  v.  Fall  River,  119 
Mass.  94;  Dickerson  v.  Fitchburg,  13  Gray  (Mass.),  555;  Keith  v. 
Lathrop,  10  Cush.  (Mass.)  457;  Demerritt  v.  Randall,  116  Mass.  331 ; 
Emerson  v.  Lowell  Gas  Co.,  6  Allen  (Mass.),  146. 

This  is  true  in  case  of  experts.  Hawkins  v.  Fall  River,  119  Mass. 
94;  Eidt  v.  Cutler,  127  Mass.  522. 

An  expert  may  give  an  account  of  experiments  performed  by  him 
for  the  purpose  of  forming  his  opinion.  Eidt  v.  Cutler,  127  Mass. 
522;  Sullivan  v.  Com.,  3  Pa.  St.  284;  Moore  v.  State,  96  Tenn.  209; 
Lindsay  v.  People,  63  N.  Y.  143,  156;  People  v.  Morrigan,  29  Mich.  5. 

And  these  experiments  may  be  performed  before  the  jury.  Leonard 
v.  So.  Pac.  Co.,  21  Ore.  555;  McKay  v.  Lasher,  121  N.  Y.  477;  Penn. 
Coal  Co.  v.  Kelly,  156  111.  9. 

But  such  evidence  is  inadmissible,  if  the  experiments  do  not  take 
place  under  conditions  similar  to  those  in  the  case  before  the  court. 
Com.  v.  Piper,  120  Mass.  105;  People  v.  Slack,  90  Mich.  448;  State  v. 
Fletcher,  24  Ore.  295.     Compare  People  v.  Conkling,  111  Cal.  616. 

An  expert  may  perform  experiments  before  the  jury  in  explana- 
tion of  his  testimony.    McKay  v.  Lasher,  121  N.  Y.  477. 

An  expert  may  state  the  grounds  of  his  opinion.  Koons  v.  State, 
36  Ohio  St.  195. 

Where  a  portion  of  the  experts  only  state  the  facts  upon  which 
they  base  their  opinions,  the  court  need  not  charge  that  the  facts 
are  entitled  to  greater  weight  than  the  opinions.  Breck  v.  State, 
4  Ohio  Circ.   Ct.   160,   180. 

Stating  results  of  experiments. —  A  witness  may  state  the  results 
of  experiments  made  under  like  conditions.  Smith  v.  State,  2  Ohio 
St.  511. 


300  A  DIGEST  OF  [Pabt  I. 

Exhibiting  article  to  jury. —  In  an  action  to  recover  damages  re- 
ceived by  a  bicycle,  a  witness  having  testified  that  all  bicycles  are 
made  on  practically  the  same  principle,  it  was  not  error  to  allow 
such  witness  to  exhibit  his  bicycle  to  the  jury  in  connection  with  his 
testimony.     Taylor  v.  McGrath,  9  Ind.  App.  30,  33. 


New  Jersey. 

Authorities. —  Declarations  to  a  physician  as  to  symptoms  are 
admissible  as  part  of  the  basis  of  his  opinion.  State  v.  Gedicke, 
43  N.  J.  L.  86. 

When  an  expert  quotes  books  of  science  as  the  basis  of  his  opin- 
ion they  may  be  admitted  to  contradict  him.  N.  J.  Zinc  Co.  v. 
Lehigh  Zinc  Co.,  59  N.  J.  L.   189. 

Opinion  evidence  should  be  given  in  connection  with  evidence  of 
the  facts.     Sloan  v.  Maxwell,  3  N.  J.  Eq.  563. 

Pennsylvania. 

Authorities. —  Brown  v.  Corey,  43  Pa.  495. 

A  nonexpert  witness  must  give  the  facts  upon  which  his  opinion 
is  founded,  so  far  as  is  possible.  Ex  parte  Springer,  4  Clark,  188; 
Austin  v.  Austin,  4  Pa.  Co.  Ct.  368. 

A  witness  who  has  given  his  opinion  as  to  the  aggregate  value 
of  property  may  give  also  the  list  of  items  from  which  he  made  up 
his  opinion.  King  v.  Faoer,  51  Pa.  387.  And  see  Selover  v.  Rex- 
ford,  52  Pa.  308. 

Reasons  upon  which  a  medical  expert's  opinion  is  founded.  Ex 
parte  Springer,  4  Clark.   188. 

An  expert  may  give  an  account  of  experiments  performed  by  him 
for  the  purpose  of  forming  his  opinion.  Sullivan  v.  Com.,  3  Pa. 
284. 

A  diagram  drawn  by  a  handwriting  expert  to  illustrate  his  mean- 
ing is  not  evidence,  but  may  be  used  by  him  and  by  counsel  in  argu- 
ment to  present  the  theory  upon  which  the  witness'  opinion  is 
based.    Eagart  v.  Carr,  198  Pa.  606. 


Chap.  VI.]  THE  LAW  OF  EVIDENCE.  301 


CHAPTER  VI.* 

CHARACTER,  WHEN  DEEMED  TO  BE  RELEVANT  AND 
WHEN  NOT. 

Aeticle  55. 
character  generally  irrelevant. 

The  fact  that  a  person  is  of  a  particular  character  is  deemed 
to  be  irrelevant  to  any  inquiry  respecting  his  conduct,  except 
in  the  cases  mentioned  in  this  chapter. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed. ),  sees.  54,  55; 
5  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  850;  Dunham  v. 
Rackliffe,  71  Me.  345;  Thayer  v.  Boyle,  30  Me.  475;  Dame  v.  Kenney, 
25  N.  H.  318;  Boardman  v.  Woodman,  4~i  N.  H.  120;  Lander  v. 
Beaver,  32  Vt.  114,  124,  76  Am.  Dec.  156;  Hampson  v.  Taylor,  15 
R.  I.  83,  8  Atl.  331;  Wright  v.  McKee,  37  Vt.  161;  Chase  v.  Maine 
Central  R.  R.  Co.,  77  Me.  62 ;  Porter  v.  Seiler,  23  Pa.  St.  424,  430,  62 
Am.  Dec.  341 ;  Simpson  v.  Westernberger,  28  Kan.  756,  42  Am.  Rep. 
195,  n.;  Fahey  v.  Crotty,  63  Mich.  383,  6  Am.  St.  Rep.  305;  O'Bryan 
v.  O'Bryan,  13  Mo.  16,  53  Am.  Dec.  128;  Lamagdelaine  v.  Trombly, 
162  Mass.  339,  39  N.  E.  38;  Boynton  v.  Kellogg,  3  Mass.  189:  Aticood 
v.  Dearborn,  1  Allen  (Mass.),  4S3,  79  Am.  Dec.  755;  Day  v.  Rose,  154 
Mass.  13;  Heytvood  v.  Reed,  4  Gray  (Mass.),  574;  McDonald  v.  Savoy, 
110  Mass.  49;  Com.  v.  Worcester,  3  Pick.  (Mass.)  462;  McCarty  v. 
Leary,  118  Mass.  509;  Clement  v.  Kimball,  98  Mass.  535;  Leonard 
v.  Allen,  11  Cush.  (Mass.)  241;  Tenney  v.  Tuttle,  1  Allen  (Mass.), 
185. 

In  civil  proceedings,  unless  the  character  of  the  party  be  directly 
put  in  issue  by  the  proceeding  itself,  evidence  of  his  general  char- 

*  See  note  XXV. 


302  A  DIGEST  OF  [Part  I. 

acter  is  not  admissible.  Humphrey  v.  Humphrey,  7  Conn.  118; 
Bennett  v.  Hyde,  6  Conn.  26;  Vawter  v.  Hultz,  112  Mo.  633;  Am.  Ins. 
Co.  v.  Hazen,  110  Pa.  St.  530;  Elliott  v.  Russell,  92  Ind.  526;  ffoUz- 
»«a»  v.  Hoy,  118  111.  534;  Leinkauf  v.  Brinker,  62  Miss.  255;  TFiWtaw* 
v.  Edmunds,  75  Mich.  92;  JJaH  v.  Rankin,  87  la.  261. 

In  actions  for  seduction  and  the  like  the  woman's  bad  character 
as  to  chastity  may  be  shown.  Sanborn  v.  Neilson,  4  X.  H.  501; 
Mitchell  v.  Work,  13  R.  I.  645;  Van  Storch  v.  Gri#m,  71  Pa.  St.  240; 
White  v.  Murtland,  71  111.  250. 

In  malicious  prosecution,  the  plaintiff's  bad  character  is  admis- 
sible on  the  issue  of  probable  cause.  Mclntyre  v.  Levering,  148 
Mass.  546;  11 'oodicorth  v.  Mills,  61  Wis.  44.  Compare  Am.  Express 
Co.  v.  Patterson,  73  Ind.  430. 

The  character  of  a  witness  for  veracity  may  always  be  attacked 
and  defended.  Fay  v.  Harlan,  128  Mass.  244;  Com.  v.  Stevenson, 
127  Mass.  446;  Gertz  v.  Fitchburg  R.  R.  Co.,  137  Mass.  77. 

To  show  that  a  book  account,  produced  in  an  action  of  book  debt, 
is  not  entitled  to  credit,  evidence  is  not  admissible  that  the  party 
who  made  the  charges  and  with  whom  the  business  relating  to  the 
account  was  transacted  is  generally  reputed  to  keep  inaccurate, 
false  and  fraudulent  accounts;  and  that  the  books  produced  are 
generally  reputed  to  be  of  that  character.  Roberts  v.  Ellsworth,  11 
Conn.  292. 

That  the  character  for  honesty  of  the  parties  to  a  conveyance  is 
bad  cannot  be  shown  to  prove  it  fraudulent.  Woodruff  v.  Whittle- 
sey, Kirby  ( Conn. ) ,  62. 

In  civil  proceedings,  unless  the  character  of  the  party  be  directly 
put  in  issue  by  the  proceeding  itself,  evidence  of  his  general  character 
is  not  admissible.  Fowler  v.  /Etna  Ins.  Co.,  6  Cow.  673,  675,  16  Am. 
Dec.  460;  Corning  v.  Corning,  6  N.  Y.  97;  Dain  v.  Wyckoff,  18  X.  Y. 
45;  Gough  v.  St.  John,  16  Wend.  646. 

If,  however,  the  adverse  party  attack  the  character  of  any  party 
or  person  interested  in  the  action,  his  good  character  can  be  shown  in 
rebuttal.  Pratt  v.  Andrews,  4  X.  Y.  493.  See  Young  v.  Johnson,  123 
N.  Y.  226. 

In  actions  for  seduction  and  the  like,  the  woman's  bad  character  as 
to  chastity  may  be  shown.  Hogan  v.  Cregan,  6  Rob.  (Super.  Ct. )  138. 
See  also  on  this  subject  Ford  v.  Jones,  62  Barb.  484;  Wandell  v.  Ed- 
wards, 25  Hun,  498;  Ayer  v.  Smith,  81  Hun,  322. 


Chap.  VI.]  THE  LAW   OF  EVIDENCE.  303 

The  character  of  the  plaintiff  is  not  admissible  in  malicious  prose- 
cution. Slcidmore  v.  Bricker,  77  111.  164;  Eorne  v.  Sullivan,  83 
111.  30. 

In  a  suit  for  assault  and  battery,  the  plaintiff's  want  of  chastity 
cannot  be  shown.     Dimick  v.  Downs,  82  111.  570. 

In  trespass  for  personal  violence,  character  is  inadmissible.  Cum- 
mins v.  Crawford,  88  111.  312. 

Partnership  cannot  be  proved  by  general  reputation.  Bowen  v. 
Rutherford,  60  111.  41. 

In  actions  for  seduction  and  the  like  the  woman's  bad  character 
as  to  chastity  may  be  shown.     White  v.  Murtland,  71  111.  250. 

Character,  how  proved. —  Moral  character  can  be  shown  by  general 
reputation  only,  and  not  by  proof  of  particular  acts.  Robertson  v. 
Hamilton,  16  Ind.  App.  328;  Griffith  v.  State,  140  Ind.  163;  Indian- 
apolis, etc.,  Co.  v.  Pugh,  6  Ind.  App.  510;  Stalcup  v.  State,  146  Ind. 
270;  Bessette  v.  State,  101  Ind.  85;  Cunningham  v.  State,  65  Ind. 
377;  Long  v.  Morrison,  14  Ind.  595;  Meyncke  v.  State,  68  Ind.  401; 
Rawles  v.  State,  56  Ind.  433;  Spencer  v.  Robbins,  106  Ind.  580. 

Character  put  in  issue. —  In  a  suit  to  set  aside  a  conveyance  for 
fraud,  the  reputation  of  the  grantor  for  honesty  is  admissible.  Van- 
sickle  v.  Shenk,  150  Ind.  413. 

In  a  civil  action  based  upon  an  act  done  by  the  defendant  which 
charges  the  plaintiff  with  being  guilty  of  a  crime,  the  plaintiff  may 
prove  his  good  character.     Blizzard  v.  Hays,  46  Ind.  166. 

If  the  defendant,  in  an  action  for  false  imprisonment,  introduces 
evidence  casting  suspicion  on  the  plaintiff's  character,  he  may  offer 
evidence  in  support  of  it.     American  Co.  v.  Patterson,  73  Ind.  430. 

A  witness  to  character  may  be  asked  if  he  has  ever  heard  of  the 
accused  being  charged  with  similar  crimes.  Shears  v.  State,  147 
Ind.  51. 

Where  one  has  testified  as  to  present  character  as  a  saloon-keeper, 
he  may  be  asked  on  cross-examination  whether  he  has  heard  that  he 
has  run  a  gambling  concern  in  connection  with  the  saloon.  Bar  Inter 
v.  State,  25  Ind.  App.  597. 

One  who  has  testified  as  to  the  defendant's  good  character,  but  has 
said  on  cross-examination  that  he  never  heard  any  one  say  anything 
about  it,  may  be  asked  as  to  facts  on  which  he  based  his  answer. 
Baehner  v.  State,  25  Ind.  App.  597. 


304  A  DIGEST  OF  [Part  I. 

In  divorce  suits. — Where  a  plaintiff  in  divorce  alleges  instances  of 
unchastity,  defendant  may  prove  her  general  good  reputation  for 
chastity.     Hilker  v.  Hither,  153  Ind.  425. 

Admissible  to  prove  want  of  probable  cause  in  malicious  prosecu- 
tion.—  Am.  Express  Co.  v.  Patterson,  73  Ind.  430. 

Character  of  witnesses. —  Proof  as  to  general  character  of  a  wit- 
ness is  inadmissible  unless  there  is  an  attempt  to  impeach  him. 
Johnson  v.  State,  21  Ind.  329. 

Witnesses  may  be  impeached  by  showing  bad  character  in  a  crim- 
inal case.    Morrison  v.  State,  76  Ind.  335;  Walton  v.  State,  88  Ind.  9. 

But  on  a  charge  of  incest,  the  unchaste  character  of  the  female 
cannot  be  shown  for  purposes  of  impeachment.  Kidicell  v.  State,  63 
Ind.  384. 

If  the  character  of  a  witness  is  attacked,  it  may  be  sustained  by 
proof  of  good  reputation.  Clackner  v.  State,  33  Ind.  412 ;  Clem  v. 
State,  33  Ind.  418;  Clark  v.  Bond,  29  Ind.  555;  Harris  v.  State,  30 
Ind.  131;  Railway  Co.  v.  Frawley,  110  Ind.  18;  Sieger  v.  Pfeifer,  35 
Ind.  13.     Compare  Fisher  v.  Hamilton,  49  Ind.   341. 

When  one  testifies  as  to  the  reputation  of  another,  he  may  be  cross- 
examined  as  to  what  he  means  by  reputation.  Hutts  v.  Hutts,  62 
Ind.  214;  Wachstetter  v.  State,  99  Ind.  290. 

Bad  character  for  chastity  cannot  be  proved  by  particular  immoral 
acts  with  other  persons.     Robertson  v.  Hamilton,  16  Ind.  App.  328. 

Maryland. 

When  proof  of  marriage  is  sought  to  be  made  by  proof  of  general 
reputation  and  cohabitation,  the  character  of  the  woman  for  chas- 
tity is  admissible.  Jackson  v.  Jackson,  80  Md.  176.  But  not  her 
reputation  after  she  and  her  alleged  husband  have  separated.  Jack- 
son v.  Jackson,  82  Md.  17. 

The  fact  that  one  is  reputed  to  be  tricky  and  likely  to  commit 
forgery  is  not  admissible  to  prove  that  he  did  commit  fraud  or  for- 
gery.    Martin  v.  Good,  14  Md.  399. 

Reputation  of  one  not  a  witness  is  not  admissible.  Hoffman  v. 
State,  93  Md.  388. 

Where  a  deed  is  impeached  for  fraud,  the  grantee  cannot  give 
evidence  of  his  good  character  in  order  to  sustain  the  deed.  Brooke 
v.  Berry,  2  Gill,  83. 


Chap.  VI.]  TEE   LAW   OF  EVIDENCE.  305 

Pennsylvania. 

Authorities. —  In  civil  proceedings,  unless  the  character  of  the 
party  be  directly  put  in  issue  by  the  proceeding  itself,  evidence  of 
his  general  character  is  not  admissible.  Am.  Ins.  Co.  v.  Hazen,  110 
Pa.  530;  Atkinson  v.  Graham,  5  Watts,  411;  Porter  v.  Seiler,  23 
Pa.  424;  Nash  v.  Oilkeson,  5  S.  &  R.  352;  Anderson  v.  Long,  10 
S.  &  R.  55. 

Reputation  of  a  party  for  truth  may  be  proved  against  him  if 
he  becomes  a  witness.     Barber  v.  Bull,  7  W.  &  S.  391. 

Character  of  one  neither  a  witness  nor  a  party  not  admitted. 
Blackburn  v.  Holliday,  12  S.  &  R.  140. 

Proof  of  specific  acts  not  admissible  to  prove  character.  Frasner 
v.  Railroad  Co.,  38  Pa.  104. 

Evidence  of  plaintiff's  bad  character  not  admitted  in  action  for 
malicious  prosecution.  Winebiddle  v.  Porterfield,  9  Pa.  137;  Rus- 
sell v.   Shust&r,  8  W.  &  S.   308. 

In  actions  for  seduction  and  the  like  the  woman's  bad  character 
as  to  chastity  may  be  shown.     Van  Storoh  v.  Griffin,  71  Pa.  240. 

In  action  for  seduction  the  good  reputation  of  the  girl  in  one 
place  may  be  proved  to  rebut  evidence  of  her  bad  reputation  in 
another  place.     Milliken  v.  Long,   188   Pa.  411. 

One's  reputation  may  be  proved  to  be  good  by  evidence  that  it  was 
not  talked  about.     Milliken  v.  Long,  188  Pa.  411. 

Article  56. 
evidence  of  character  in  criminal  cases. 

In  criminal  proceedings;,  the  fact  that  the  person  accused 
has  a  good  character,  is  deemed  to  be  relevant ;  but  the  fact 
that  he  has  a  bad  character  is  deemed  to  be  irrelevant, 
unless  it  is  itself  a  fact  in  issue,  or  unless  evidence  has  been 
given  that  he  has  a  good  character,  in  which  case  evidence 
that  he  has  a  bad  character  is  admissible. 

A  person  charged  with  an  offence  and  called  as  a  witness 
in  pursuance  of  the  Criminal  Evidence  Act,  1898,  may  not 
20 


306  A  DIGEST  OF  [Part  I. 

be  asked,  and  if  asked  may  not  be  required  to  answer,  any 
question  tending  to  show  that  he  has  committed,  or  been 
convicted  of,  or  been  charged  with  any  offence  other  than 
that  whereof  he  is  then  charged, 

or  is  of  bad  character, 

unless 

(i)  the  proof  that  he  has  committed  or  been  convicted  of 
such  other  offence  is  admissible  evidence  to  show  that  he  is 
guilty  of  the  offence  wherewith  hu  is  then  charged;1  or 

(ii)  he  has  personally  or  by  his  advocate  asked  questions 
of  the  witnesses  for  the  prosecution  with  a  view  to  establish 
his  own  good  character, 

or  has  given  evidence  of  his  own  good  character ; 

or  the  nature  or  conduct  of  the  defence  is  such  as  to 
involve  imputations  on  the  character  of  the  prosecutor,  or 
the  witnesses  for  the  prosecution ;  or 

(iii)  he  has  given  evidence  against  any  other  person 
charged  with  the  same  offence.2 

When  any  person  gives  evidence  of  his  good  character 
other  than  his  own  sworn  testimony,  who — 

Being  on  his  trial  for  any  felony  not  punishable  with 
death,  has  been  previously  convicted  of  felony  ;3 

Or,  who  being  upon  his  trial  for  any  offence  punishable 
under  the  Larceny  Act,   1861,  has  been  previously  con- 

1  See  Article  11  and  the  concluding  paragraphs  of  this  article. 

2  61  &  62  Vict.  c.  36,  s.  1  (/). 

36  &  7  Will.  IV.  c.    Ill,  referring   to  7   &  8  Geo.   IV.  c.   28,  s.  11. 
If  "  not  punishable  with  death  "  means  not  so  punishable  at  the  time 


Chap.  VI.]  THE  LAW  OF  EVIDENCE.  307 

victcd  of  any  felony,  misdemeanour,  or  offence  punishable 
upon  summary  conviction:4 

Or  who,  being  upon  his  trial  for  any  offence  against  the 
Coinage  Offences  Act,  1861,  or  any  former  Act  relating  to 
the  coin,  has  been  previously  convicted  of  any  offence 
against  any  such  Act.5 

The  prosecutor  may,  in  answer  to  such  evidence  of  good 
character,  give  evidence  of  any  such  previous  conviction 
before  the  jury  return  their  verdict  for  the  offence  for  which 
the  offender  is  being  tried.6 

In  this  article  the  word  "  character  "  means  reputation  as 
distinguished  from  disposition,  and,  except  as  previously 
mentioned  in  this  article,  evidence  may  be  given  only  of 
general  reputation  and  not  of  particular  acts  by  which  rep- 
utation or  disposition  is  shown.7 

AMERICAN  NOTE. 

General. 

Authorities. —  3  Greenleaf  on  Evidence  (15th  ed.),  sec.  25;  5  Am, 
&,  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  866  et  seq.;  State  v. 
Tozier,  49  Me.  404;  Com.  v.  Webster,  5  Cush.  (Mass.)  295,  324,  52 
Am.  Dec.  711;  Miller  v.  Curtis,  158  Mass.  127,  35  Am.  St.  Rep.  469; 
Com.  v.  Leonard,  140  Mass.  473. 

The  character  must  be  as  to  points  which  would  tend  to  show 

when  7  &  8  Geo.  IV,  c.  28  was  passed  (21  June,  1827),  this  narrows 
the  effect  of  the  article  considerably. 
*  24  &  25  Vict.  c.  96,  s.  116. 

5  24  &  25  Vict.  c.  99,  s.  37. 

6  See  each  of  the  Acts  above  referred  to. 

^  R.  v.  Rowton,  1865,  1  L.  &  C.  520.  R.  v.  Ttirberfield,  1864.  1  L.  & 
C.  495,  is  a  case  in  which  the  character  of  a  prisoner  became  incident- 
ally relevant  to  a  certain  limited  extent. 


308  A  DIGEST  OF  [Part  I. 

that  it  was  unlikely  that  the  defendant  committed  the  crime  in 
question.     Com.  v.   Nagle,  157   Mass.   554. 

In  a  prosecution  for  adultery,  evidence  of  the  good  character 
for  chastity  of  the  woman  with  whom  the  adultery  was  alleged  to 
have  been  committed  is  admissible.     Com.  v.  Gray,   129  Mass.  474. 

In  rape,  evidence  of  the  general  character  of  the  plaintiff  re- 
specting the  subject-matter  of  the  charge  may  be  introduced  by 
the  defendant.  Seymour  v.  Merrills,  1  Root  (Conn.),  459;  Brunson 
v.  Lynde,  1  Root   (Conn.),  354. 

Whether  the  general  character  for  truth  of  the  complainant  in 
a  prosecution  for  rape,  or  attempted  rape,  may  not  always  be 
shown  in  chief  by  the  State,  qucere.     State  v.  Be  Wolf,  8  Conn.  100. 

Except  in  prosecutions  for  rape  or  attempted  rape,  evidence  is 
not  admissible  in  support  of  the  general  character  of  a  witness 
for  truth,  unless  a  direct  attempt  has  been  made  to  impeach  it,  or 
he  is  a  stranger.     Rogers  v.  Moore,  10   Conn.  16,   17. 

A  witness  may  not  testify  as  to  the  disposition  of  the  accused. 
State  v.  Renton,  15  N.  H.  169. 

Evidence  of  good  character. —  First  paragraph  of  text.  Com.  v. 
Gazzolo,  123  Mass.  220;  Edgington  v.  U.  S.,  164  U.  S.  261;  Com.  v. 
Cleary,  135  Pa.  St.  64;  Jackson  v.  State,  81  Wis.  127;  People  v.  Har- 
rison, 93  Mich.  594;  State  v.  Howell,  100  Mo.  628;  State  v.  Rodman, 
62  la.  456. 

Good  character  may  be  shown  in  defense  in  a  murder  trial.  Com. 
v.  Hardy,  2  Mass.  303,  317;  Com.  v.  Webster,  5  Cush.  (Mass.)  296. 

The  rule  that  good  character  is  not  to  be  considered  unless  the 
jury  are  in  doubt  on  the  other  evidence  is  no  longer  law.  Com. 
v.  Leonard,  140  Mass.   479. 

Evidence  of  bad  character. —  State  v.  Lapage,  57  N.  H.  245,  24 
Am.  Rep.  69;  State  v.  Ellwood,  17  R.  I.  763,  24  Atl.  782;  State  v. 
Hull,  18  R.  I.  207,  26  Atl.  191,  20  L.  R.  A.  609;  People  v.  Fair,  43  Cal. 
137;  Com.  v.  Saclcet,  22  Pick.  (Mass.)  394;  Com.  v.  Hardy,  2  Mass. 
303,  317;  Com.  v.  O'Brien,  119  Mass.  345;  Rex  v.  Doaks,  Quincy,  90. 

General  reputation,  not  particular  acts. —  State  v.  Lapage,  57 
N.  H.  245,  24  Am.  Rep.  69;  Com.  v.  O'Brien,  119  Mass.  342,  345,  20 
Am.  Rep.  325;  Com.  v.  Harris,  131  Mass.  336.  Compare  Com.  v.  Rob- 
inson, Thacher  Cr.  Cas.  230;  Snyder  v.  Com.,  85  Pa.  St.  519;  Mc- 
Queen v.  State,  108  Ala.  54;  Berneker  v.  State,  40  Neb.  810;  State  v. 


Chap.  VI.]  THE  LAW  OF  EVIDENCE.  309 

Lapage,  57  N.  H.  245;  Betts  v.  Lockwood,  8  Conn.  488,  489;  State  v. 
Ferguson,  71  Conn.  227. 

This  must  be  that  had  by  a  person  in  his  own  community.  Conkey 
v.  People,  1  Abb.  Dec.  418. 

New  Jersey. 

General  rule. —  State  v.  Wells,  Coxe,  424. 

The  State  may  attack  the  character  of  an  accused  only  when  he 
introduces  evidence  that  it  is  good,  and  even  then  the  State  may 
not  prove  any  specific  facts,  but  is  restricted  to  evidence  as  to  gen- 
eral reputation.     Bullock  v.  State,  65  N.  J.  L.  557. 

Evidence  of  the  character  or  reputation  of  an  accused  acquired 
subsequent  to  the  commission  of  the  offense  is  inadmissible.  State 
v.  Sprague,  04  X.  J.  L.  419. 

In  a  prosecution  for  having  carnal  knowledge  of  a  woman  under 
the  age  of  consent,  the  defendant  may  prove  his  "  reputation  for 
morality,  virtue,  and  honesty  in  living."  State  v.  Snover,  63 
N.  J.  L.  383. 

Character  of  accused  for  truthfulness.— Evidence  of  a  witness' 
reputation  for  truthfulness  may  be  given  as  it  exists  at  the  time 
such  witness  testifies,  though  the  witness  is  also  the  defendant  in 
a  criminal  prosecution.     State  v.  Sprague,  64  N.  J.  L.  41!). 

Chastity. —  In  prosecutions  for  rape  the  bad  character  of  the 
prosecutrix  for  chastity  prior  to  the  offense  is  admissible.  O'Blenis 
v.  State,  47  N.  J.  L.  279. 

Reputation  for  chastity  may  be  proved  by  witnesses  who  move 
in  the  same  circle  and  have  never  heard  the  woman's  chastity  ques- 
tioned. State  v.  Brown,  64  N.  J.  L.  414;  Zabriskie  v.  State,  43 
N.  J.  L.   644. 

In  bastardy  proceedings  the  accused  may  prove  his  previous  good 
character  for  morality.  Hawkins  v.  State,  1  Zab.  630;  Dally  v. 
Woodbridge,   1  Zab.  491. 

Maryland. 

In  a  prosecution  for  keeping  a  bawdy-house,  the  general  reputa- 
tion of  the  house  is  not  admissible,  but  the  general  reputation  of 
those  who  frequent  the  house  is  admissible.  Beard  v.  State,  71  Md. 
275.  In  such  a  case  a  particular  instance  of  lewdness  is  admissible. 
Id. 

Defendant  may  prove  the  character  of  the  deceased  as  a  danger- 
ous man.    Jenkins  v.  State,  80  Md.  72. 


310  A  DIGEST  OF  [Pabt  I. 

Evidence  that  defendant  was  transported  as  a  convict  from  Eng- 
land is  admissible  to  prove  bad  character.  State  v.  Itidgely,  2  Har. 
&  McH.  120. 

That  one  is  a  common  thief  may  be  proved  by  general  reputation. 
World  v.  State,  50  Md.  49. 

Pennsylvania. 

General  rule. —  Com.  v.  Wetland,  1  Brewst.  312;  Com.  v.  Clegget, 
3  Leg.  Gaz.  9;  Com.  v.  Winnemore,  1  Brewst.  356. 

General  reputation  of  a  witness  for  the  State  in  a  murder  trial 
cannot  be  shown.     Com.  v.  Payne,  205  Pa.  101. 

Evidence  of  the  turbulent  character  of  the  deceased  may  be  ad- 
missible on  the  question  of  self-defense.  Alexander  v.  Com.,  105 
Pa.   1. 

In  rape,  the  repute  of  the  female  is  admissible,  including  evi- 
dence of  specific  unchaste  acts.     Com.  v.  Davis,  3  Pa.  Dist.  271. 

Evidence  of  good  character. —  First  paragraph  of  text.  Com.  v. 
Cleary,  135  Pa.  64. 

Not  only  where  a  doubt  of  guilt  exists  on  other  proof,  but  to 
raise  such  a  doubt.     Com.  v.  Clegget,  3  Leg.  Gaz.  9. 

Testimony  as  to  the  defendant's  good  character  must  be  confined 
to  general  reputation  and  cannot  include  specific  acts.  Snyder  v. 
Com.,  85  Pa.  519. 

Proof  of  good  character  alone  may  be  sufficient  to  raise  a  reason- 
able doubt.  Com.  v.  Barpar,  2  Law  T.  (N\  S.)  37;  Becker  v.  Com., 
9  Atl.  510;  Com.  v.  Shaub.  5  Lane.  Bar.  121;  Com.  v.  Harmon,  199 
Pa.   521. 

Previous  good  character  cannot  avail  when  there  is  clear  proof 
of  guilt.  Com.  v.  Smith,  6  Am.  Law  Keg.  (0.  S.)  257;  Com.  v. 
Piatt,  33  Leg.  Int.  436;   Heine  v.  Com.,  91  Pa.  145. 

Defendant  may  show  that  he  had  been  sent  to  a  reform  school 
through  no  fault  of  his  own.     Abernethy  v.  Com.,  101  Pa.  322. 

Article  57. 

character  as  affecting  damages. 

In  civil  cases,  the  fact  that  a  person's  general  reputation 

is  bad,  may  it  seems  be  given  in  evidence  in  reduction  of 

damages ;  but  evidence  of  rumours  that  his  reputation  was 


Chai\  VI.]  THE  LAW  OF  EVIDENCE.  311 

bad,  and  evidence  of  particular  facts  showing  that  his  dis- 
position was  bad,  cannot  be  given  in  evidence.8 

In  actions  for  libel  and  slander  in  which  the  defendant 
does  not  by  his  defence  assert  the  truth  of  the  statement 
complained  of,  the  defendant  is  not  entitled  on  the  trial  to 
give  evidence  in  chief  with  a  view  to  mitigation  of  damages, 
as  to  the  circumstances  under  which  the  libel  or  slander  was 
published,  or  as  to  the  character  of  the  plaintiff,  without  the 
leave  of  the  judge,  unless  seven  days  at  least  before  the 
trial  he  furnishes  particulars  to  the  plaintiff  of  the  matters 
as  to  which  he  intends  to  give  evidence.9 

AMERICAN  NOTE. 

General. 

Authorities. — Ogden  on  Libel  and  Slander  (Am.  ed. ),  p.  305, 
note  (a);  5  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  850 
et  seq.;  Stone  v.  Varney,  7  Mete.  (Mass.)  86,  39  Am.  Dec.  762;  Mc- 
Intyre  v.  Levering,  148  Mass.  546;  Clark  v.  Brown,  116  Mass.  504; 
Rowland  v.  Blake  Mfg.  Co.,  156  Mass.  543,  568. 

This  rule,  in  this  country,  at  least,  is  restricted  to  actions  for 
injury  to  character.  The  case  cited  by  the  author  applies  it  to 
cases  of  slander  and  libel. 

Evidence  of  good  general  moral  character  may  be  introduced  in 
libel  cases.  Sickra  v.  Small,  87  Me.  493;  Clark  v.  Brown,  116  Mass. 
504 ;  Duval  v.  Davey,  32  O.  St.  604,  612 ;  Post  Publishing  Co.  v.  Hal- 
lam,  59  Fed.  Eep.  530.  And  evidence  of  the  general  bad  reputation  of 
the  plaintiff  may  be  offered  to  mitigate  damages.  Nellis  v.  Cramer, 
86  Wis.  337;  Drown  v.  Allen,  91  Pa.  St.  393;  Bathrick  v.  Detroit  Post 
Co.,  50  Mich.  629. 

8  Scott  v.  Sampson,  1882,  8  Q.  B.  D.  491,  in  which  all  the  older  cases 
are  minutely  examined  in  the  judgment  of  Cave,  J. 

9  R.  S.  C,  Order  XXXVL,  rule  37. 


312  A  DIGEST  OF  [Pabt  I. 

In  suit  for  defamation,  evidence  to  show  bad  character,  so  far 
as  integrity  and  moral  worth  or  the  traits  involved  in  the  libel 
are  concerned  is  alone  admissible.  Leonard  v.  Allen,  11  Cush.  (Mass.) 
241. 

Such  evidence  is  admissible  in  a  suit  for  malicious  prosecution. 
Bacon  v.  Towne,  4  Cush.  (Mass.)  217. 

That  reports  were  circulated,  charging  the  plaintiff  with  the 
act  imputed  in  the  slanderous  statement,  cannot  be  shown.  Sickra 
v.  Small,  87  Me.  493;  Mahoney  v.  Belford,  132  Mass.  393;  Pease  v. 
Shippen,  80  Pa.  St.  513;  Banners  v.  McClelland,  74  la.  318.  Nor  can 
they  in  malicious  prosecution  if  the  defendant  did  not  know  of  the 
reports.  Lathrop  v.  Adams,  133  Mass.  471 ;  Larrabee  v.  Minn.  Tribune 
Co.,  36  Minn.  141. 

The  plaintiff  may  give  evidence  in  chief  of  his  good  character 
and  need  not  wait  until  the  defendant  has  adduced  evidence  of 
his  bad  character.     Bennett  v.   Hyde,   6   Conn.  24. 

The  defendant  may  show  in  mitigation  of  damages  that  it  had 
become  a  matter  of  common  and  general  report  that  the  facts 
charged  by  the  slanderous  words  were  true,  before  he  uttered 
them;  both  as  showing  that  the  plaintiff's  reputation  was  not  un- 
sullied, and  as  evidence  of  the  defendant's  innocent  intent.  Case 
v.  Marks,  20  Conn.  251,  252. 

In  an  action  of  slander  for  imputing  certain  practices  to  the 
plaintiff,  the  defendant  may  show  that  the  reputation  <5f  the  plain- 
tiff is  disparaged  by  there  having  been  reports  in  the  neighborhood 
that  he  had  been  guilty  of  practices  similar  to  those  imputed  to 
him.     Bailey  v.  Hyde,  3  Conn.  466. 

General  reputation,  not  particular  acts. —  The  defendant  is  re- 
stricted to  proof  of  general  reputation.  He  cannot  show  specific 
wrongful  acts.  McLaughlin  v.  Cowley,  131  Mass.  70;  Miller  v. 
Curtis,  158  Mass.  127,  131 ;  Hallowell  v.  Guntle,  82  Ind.  554. 

Proof  of  general  reputation  is  solely  competent.  Specific  wrongful 
acts  cannot  be  shown.  Hart  v.  McLaughlin,  64  N.  Y.  Supp.  827,  51 
App.  Div.  411.  See  Hilton  v.  Carr,  58  N.  Y.  Supp.  134,  40  App.  Div. 
490. 

New  Jersey. 

Libel  and  slander. —  Proof  of  general  reputation  is  allowed  in 
slander.     Sayrc  v.  Sayre,  25  N.  J.  L.  235. 

In  slander,  evidence  that  the  words  were  commonly  used  of  the 
plaintiff  by  others  is  admissible.     Cook  v.  Barkley,  Pen.  169. 


Ohap.  VI.]  THE  LAW  OF  EVIDENCE.  313 


The  defendant  in  slander  or  libel  may  show  that  he  did  not 
originate  the  calumnious  charge,  in  mitigation  of  damages.  Ho- 
boken  Printing  Co.  v.  Kahn,  58  N.  J.  L.  359. 

Malicious  prosecution. —  In  action  for  malicious  prosecution  evi- 
dence of  the  bad  character  of  the  plaintiff  is  admissible.  O'Brien 
v.  Frasier,  47  N.  J.  L.  349. 

Breach  of  promise. —  Lewd  conduct  after  the  promise  by  the  plain- 
tiff in  breach  of  promise  can  be  shown  in  mitigation  of  damages. 
Budd  v.  Crea,  1  Hal.  370. 

Maryland. 

In  breach  of  promise,  the  character  of  the  plaintiffs  mother  is 
not  admissible  in  mitigation  of  damages  or  otherwise.  Lewis  v. 
Tapman,  90  Md.  294. 

Libel  and  slander. —  In  actions  for  libel  and  slander,  the  character 
of  the  plaintiff  may  be  proved.  Dorsey  v.  Whipps,  8  Gill,  457 ; 
Shilling  v.  Carson,  27  Md.  175. 

Pennsylvania. 

In  breach  of  promise,  plaintiff's  bad  character  for  chastity  is 
admissible  in  mitigation  of  damages.  Van  8 torch  v.  Qriffin,  71  Pa. 
240. 

In  libel  and  slander,  the  defendant  may  prove  the  plaintiff's  bad 
reputation.  Henry  v.  Norwood,  4  Watts,  347 ;  Steinman  v.  McWil- 
liams,  6  Pa.  170;  Conroe  v.  Conroe,  47  Pa.  198;  Moyer  v.  Hoyer, 
49  Pa.  210;  Drown  v.  Allen,  91  Pa.  393. 

Plaintiff  in  a  libel  case  may  give  evidence  of  his  good  reputation 
after  the  defendant  has  attacked  it.  Clark  v.  North  American  Co., 
203  Pa.  346;  Chubb  v.  Gesell,  34  Pa.  114. 

That  reports  were  circulated,  charging  the  plaintiff  with  the  act 
imputed  in  the  slanderous  statement,  cannot  be  shown.  Pease  v. 
Shippen,  80  Pa.  513. 

Evidence  of  bad  character  is  not  admissible  in  an  action  on  a 
promissory  note.     Battles  v.  Laudenslager,  84   Pa.  446. 


314  A    DIGEST    OF  [Part  II. 


PART  II. 
ON     PROOF. 
CHAPTER  VII. 

FACTS    PROVED    OTHERWISE    THAN    BY    EVIDENCE  — JU- 
DICIAL NOTICE. 

Article  58.* 

of  what  facts  the  court  takes  judicial  notice. 

It  is  the  duty  of  all  judges  to  take  judicial  notice  of  the 
following  facts : — 

(1)  All  unwritten  laws,  rules,  and  principles  having  the 
force  of  law  administered  by  any  Court  sitting  under  the 
authority  of  Her  Majesty  and  her  successors  in  England  or 
Ireland,  whatever  may  be  the  nature  of  the  jurisdiction 
thereof.1 

(2)  All  public  Acts  of  Parliament,1  and  all  Acts  of  Par- 
liament whatever,  passed  since  February  4,  1851,  unless  the 
contrary  is  expressly  provided  in  any  such  Act.2 

(3)  The  general  course  of  proceeding  and  privileges  of 
Parliament  and  of  each  House  thereof,  and  the  date  and 

*  See  note  XXVI. 

1  1  Fh.  Ev.  460-1 ;  Taylor,  s.  5;  and  see  36  &  37  Vict.  c.  66  (Ju- 
dicature Act  of  1873),  s.  25. 

2  52  &  53  Vict.  c.  63  (The  Interpretation  Act,  1889),  s.  9. 


Chap.  VII.]  THE   LAW   OF  EVIDENCE.  315 

place  of  their  sittings,  but  not  transactions  in  their  jour- 
nals.3 

(4)  All  general  customs  which  have  been  held  to  have 
the  force  of  law  in  any  division  of  the  High  Court  of  Justice 
or  by  any  of  the  superior  courts  of  law  or  equity,  and  all 
customs  which  have  been  duly  certified  to  and  recorded  in 
any  such  court.4 

(5)  The  course  of  proceeding  and  all  rules  of  practice  in 
force  in  the  Supreme  Court  of  Justice.  Courts  of  a  limited 
or  inferior  jurisdiction  take  judicial  notice  of  their  own 
course  of  procedure  and  rules  of  practice,  but  not  of  those 
of  other  courts  of  the  same  kind,  nor  does  the  Supreme 
Court  of  Justice  take  judicial  notice  of  the  course  of  pro- 
cedure and  rules  of  practice  of  such  Courts.5 

(6)  The  accession  and  \_semble~\  the  sign  manual  of  Her 
Majesty  and  her  successors.6 

(7)  The  existence  and  title  of  every  State  and  Sovereign 
recognised  by  Her  Majesty  and  her  successors.7 

(8)  The  accession  to  office,  names,  titles,  functions,  and 
when  attached  to  any  decree,  order,  certificate,  or  other 

3  1  Ph.  Ev.  460;  Taylor,  s.  5;  but  see  8  &  9  Vict.  c.  113,  s.  3,  as  to 
journals  of  the  Houses  of  Parliament. 

■i  The  old  rule  was  that  each  Court  took  notice  of  customs  held  by 
or  certified  to  it  to  have  the  force  of  law.  It  is  submitted  that  the 
effect  of  the  Judicature  Act,  which  fuses  all  the  Courts  together, 
must  be  to  produce  the  result  stated  in  the  text.  As  to  the  old  law, 
see  riper  v.  Chappell,  1845,  14  M.  &  W.  649-50.  Ex  parte  Powell, 
In  re  Matthews,  1875,  1  Ch.  Div.  505-7,  contains  some  remarks  by 
Lord  Justice  Mellish  as  to  proving  customs  till  they  come  by  degrees 
to  be  judicially  noticed. 

5  1  Ph.  Ev.  462-3 ;  Taylor,  s.  20. 

6  1  Ph.  Ev.  458  ;  Taylor,  ss.  18,  14. 

7  1  Ph.  Ev.  460 ;  Taylor,  s.  4. 


310  A    DIGEST    OF  [Pabt  II. 

judicial  or  official  documents,  the  signatures  of  all  the 
judges  of  the  Supreme  Court  of  Justice.8 

(9)  The  Great  Seal,  the  Privy  Seal,  the  seals  of  the 
Superior  Courts  of  Justice,9  and  all  seals  which  any  Court 
is  authorised  to  use  by  any  Act  of  Parliament,10  certain 
other  seals  mentioned  in  Acts  of  Parliament,10  the  seal  of 
the  Corporation  of  London,11  and  the  seal  of  any  notary 
public  in  the  Queen's  dominions.12 

(10)  The  extent  of  the  territories  under  the  dominion 
of  Her  Majesty  and  her  successors;  the  territorial  and 
political  divisions  of  England  and  Ireland,  but  not  their 
geographical  position  or  the  situation  of  particular  places ; 
the  commencement,  continuance,  and  termination  of  war 
between  Her  Majesty  and  any  other  Sovereign;  and  all 
other  public  matters  directly  concerning  the  general  govern- 
ment of  Her  Majesty's  dominions.13 

(11)  The  ordinary  course  of  nature,  natural  and  artificial 
divisions  of  time,  the  meaning  of  English  words.14 

(12)  All  other  matters  which  they  are  directed  by  any 
statute  to  notice. 


8  1  Ph.  462;  Taylor,  s.  14;  and  as  to  latter  part,  8  &  9  Vict.  c.  113, 
s.  2,  as  modified  by  36  &  37  Vict.  c.  66,  s.  76  (Judicature  Act  of 
1873). 

9  The  Judicature  Acts  confer  no  seal  on  the  Supreme  or  High 
Court  or  its  divisions. 

io  Doe  v.  Edicards,  1839,  9  A.  &  E.  555.  See  a  list  in  Taylor, 
s.  6. 

"  1  Ph.  Ev.  464 ;  Taylor,  s.  6. 

12  Cole  v.  Sherard,  1855,  11  Ex.  482.  As  to  foreign  notaries,  see 
Earl's  Trust,  1858,  4  K.  &  J.  300. 

13  1  Ph.  Ev.  466,  460,  458;  and  Taylor,  s.  17. 
2*1  Ph.  Ev.  465-6;  Taylor,  s.  16. 


Chap.  VII.]  THE  LAW   OF  EVIDENCE.  317 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  4  et  seq.; 
17  Am.  &  Eng.  Encyclopaedia  of  Law    (2d  ed.),  p.  892  et  seq. 

The  instances  of  facts  taken  judicial  notice  of  can  be  multiplied 
indefinitely.  A  few  illustrative  ones  only  appear  in  the  note.  Refer- 
ence is  made  for  others  to  the  authorities  cited  here  and  to  the 
various  digests. 

Courts  will  take  judicial  notice  of  the  geographical  divisions  of  the 
State.  Harney  v.  Wayne,  72  Me.  430 ;  Bellows  v.  Elliott,  12  Vt.  569 ; 
Ham  v.  Ham,  39  Me.  266;  State  v.  Jackson,  39  Me.  291 ;  Goodwin  v. 
Appleton,  22  Me.  453;  Jones  v.  U.  S.,  137  U.  S.  202;  State  v.  Wag- 
ner, 61  Me.  178;  Mossman  v.  Forrest,  27  Ind.  233,  236;  Rogers  v. 
Cady,  104  Cal.  288 ;  People  v.  Waller,  70  Mich.  237 ;  State  v.  Cunning- 
ham, 81  Wis.  440;  Pitts  v.  Lewis,  81  la.  51.  And  of  the  boundaries 
of  the  State,  as  claimed  by  it.  State  v.  Dunwell,  3  R.  I.  127.  But 
not  of  the  limits  of  a  place  which  is  not  a  public  corporation.  Blan- 
din  v.  Sargent,  33  N.  H.  239,  66  Am.  Dec.  720.  And  of  the  geographi- 
cal features  of  the  State,  as  its  large  lakes,  rivers,  and  mountains. 
Winnipiseogee  Lake  Co.  v.  Young,  40  N.  H.  420;  People  v.  Brooks, 
101  Mich.  98 ;  State  v.  Thompson,  85  Me.  189. 

But  not  of  the  fact  that  gin  and  turpentine  are  "  inflammable 
liquids,"  within  the  terms  of  an  insurance  policy.  Mosley  v.  Vt.  Mut. 
Fire  Ins.  Co.,  55  Vt.  142. 

Courts  take  judicial  notice  of  the  fact  that  vacant  buildings  are 
more  exposed  to  fire  than  those  occupied.  White  v.  Phoenix  Ins. 
Co.,  83  Me.  279,  22  Atl.  167. 

Judicial  notice  is  superior  to  proof  as  a  means  of  proving  facts. 
State  v.  Main,  69  Conn.   136. 

The  court  will  interpret  language  by  the  aid  of  those  facts  which 
pertain  to  that  common  and  general  fund  of  knowledge  and  in- 
formation which  belongs  to  the  domain  of  things  of  which  all 
courts  are  bound  to  take  judicial  notice.  Robinson  v.  Clapp,  65 
Conn.  395. 

Our  courts  take  judicial  notice  of  the  seal  of  a  foreign  govern- 
ment.    Oriswold  v.  Pitcairn,  2  Conn.  89. 

Courts  take  judicial  notice  of  the  date  of  the  rising  of  the  gen- 
eral assembly.    Perkins  v.  Perkins,  7  Conn.  564.     And  of  the  local 


318  A    DIGEST    OF  [Part  IL 

divisions  of  the  State  into  towns  and  counties.  State  v.  Powers,  25 
Conn.  50.  And  of  the  laws  governing  courts  and  of  the  jurisdiction 
of  inferior  courts  whose  judgments  they  revise.  Clapp  v.  Hartford, 
35  Conn.  74.  And  of  railroad  lines,  mail  facilities,  and  telegraph 
communication.  Morgan  v.  Parrel,  58  Conn.  428.  And  of  the  hours 
of  sunrise  and  sunset,  but  an  almanac  may  be  read  on  the  trial  to 
refresh  the  memory  of  the  court  and  jury.  State  v.  Morris,  47 
Conn.  180.  And  that  some  colored  paper  is  dyed  with  poisonous 
substances  and  some  is  not.  O'Keefe  v.  National,  etc.,  Co.,  66  Conn. 
45.  And  that  peach  "  yellows "  exists  and  is  a  serious  disease. 
State  v.  Main,  69  Conn.  135.  And  that  blasting  with  dynamite  is 
intrinsically  dangerous.  Norwalk  Gas-Light  Co.  v.  Norwalk,  63 
Conn.  528.  And  that  the  term  "  policy  playing  "  was  in  current  use 
at  the  time  a  certain  ordinance  was  passed.  State  v.  Carpenter,  60 
Conn.  102. 

Courts  will  take  judicial  notice  of  an  English  statute  concerning 
prize  causes.  Hooker  v.  Pagan,  7  Dane  Abr.  645.  So  of  the  Con- 
stitution of  another  State.  Buffum  v.  Stimpson,  5  Allen  (Mass.), 
591.  So  of  the  judges  of  lower  courts.  Com.  v.  Jeffts,  14  Gray 
(Mass.),  19;  Vahle  v.  Brackenseik,  145  111.  231;  State  v.  Wright,  16 
R.  I.  518;  State  v.  Higgins,  124  Mo.  649;  Kennedy  v.  Com.,  78  Ky. 
447;  Kilpatrick  v.  Com.,  31  Pa.  St.  198;  People  v.  McConnell,  155  111. 
192.  So  of  the  various  counties.  Com.  v.  Desmond,  103  Mass.  445. 
So  of  the  jurisdiction  of  a  court.  Com.  v.  Desmond,  103  Mass.  445. 
So  of  the  navigability  of  a  river.  Com.  v.  King,  150  Mass.  221,  22 
1ST.  E.  905,  5  L.  R.  A.  536.  So  of  the  fact  that  tobacco  and  cigars  sold 
by  a  tobacconist  are  not  drugs.  Com.  v.  Marzynski,  149  Mass.  68,  21 
N.  E.  228. 

Treaty. —  A  treaty  must  be  judicially  noticed,  for  it  is  the  su- 
preme law  of  the  land.  People  ex  rel.  Young  v.  Stout,  81  Hun,  336; 
affirmed,  on  opinion  below,  in  144  N.  Y.  699. 

The  cession  of  the  "  Pulteney  estate "  to  Massachusetts,  by  the 
treaty  of  17S6  will  be  judicially  noticed  and  likewise  the  extinguish- 
ment of  the  Indian  title  thereto.  Howard  v.  Moot,  64  N.  Y.  262,  2 
Hun.  475. 

Great  seal. —  The  courts  will  take  judicial  notice  of  the  seal  of  a 
foreign  State.    Lincoln  v.  Battelle,  6  Wend.  475. 

And  of  the  mode  of  affixing  the  great  seal,  whether  by  appending 


Chap.  VII.]  THE   LAW   OF   EVIDENCE.  319 

it  to  a  patent  as  formerly,  or  by  impressment.  Williams  v.  Sheldon, 
10  Wend.  654. 

Common  law  and  statutes. — The  court  will  take  judicial  notice  of 
the  existence  of  the  common  law  in  England  at  the  time  of  the  Amer- 
ican Revolution,  and  will  presume,  unless  it  is  otherwise  proved,  that 
this  law  remains  unchanged.  Stokes  v.  Macken,  62  Barb.  145.  And 
also  that  the  common  law  does  not  prevail  in  France.  In  re  Hall, 
70  N.  Y.  Supp.  406.  But  the  statute  laws  of  another  State,  not  in 
harmony  with  the  common  law,  will  not  be  judicially  noticed.  Harris 
v.  White,  81  N.  Y.  532;  Holmes  v.  Broughton,  10  Wend.  75;  Hosford 
v.  Nichols,  1  Paige,  220;  Humphreys  v.  Chamberlain,  1  Code  Rep. 
(N.  S.)   3S7. 

Statutes. —  Judicial  notice  will  be  taken  of  statutes  which  define 
boundaries.     Ross  v.  Reddick,  1  Scam.  73. 

Of  public  acts.  Ross  v.  Reddick,  1  Scam.  73;  Illinois  Cent.  R.  R. 
Co.  v.  Wren,  43  111.  77 ;  Binkert  v.  Jansen,  94  111.  283 ;  R.,  R.  I.  &  St. 
L.  R.  R.  Co.  v.  Lynch,  67  111.  149;  Grob  v.  Cushman,  45  111.  119. 

Of  a  public  act  not  pleaded.  Vance  v.  Rankin,  194  111.  625,  62 
N.  E.  807,  reversing  95  111.  App.  562. 

Of  duties  under  statutes.     People  v.  Hill,  163  111.  186. 

Acts  of  Congress. —  Of  acts  of  Congress.  Gooding  v.  Morgan,  70 
111.  275;  Smith  v.  Stevens,  82  111.  554;  Dickenson  v.  Breeden,  30  111. 
279. 

Of  the  charter  of  a  city.     People  v.  Wilson,  3  Brad.  368. 

Of  the  charter  of  Springfield.  Browning  v.  Springfield,  17  111. 
143,  147. 

Judicial  facts.—  Of  the  terms  of  the  Circuit  Court.  Buckles  v. 
Northern  Bank,  63  111.  268. 

Of  the  Chicago  courts  and  where  they  are  held.  Hearson  v.  Gran- 
dine,  87  111.  115. 

Of  the  reports  of  legal  decisions.     McDeed  v.  McDeed,  67  111.  546. 

Of  the  laws  of  other  States  in  so  far  as  is  necessary  in  ascertaining 
the  faith  and  credit  to  be  given  to  their  judgments.  Hull  v.  Webb, 
78  111.  App.  617. 

Of  the  persons  who  are  justices.  Livingston  v.  Kettelle,  1  Gilm. 
116;  Graham  v.  Anderson,  42  111.  515;  Shattuck  v.  People,  4  Scam. 
478;  Irving  v.  Brownell,  11  111.  403. 

Of  judges  and  the  organization  of  courts.  Vahle  v.  Brackenseck, 
145  111.  231. 


320  A  DIGEST  OF  [Part  II. 

Of  the  judges  of  lower  courts.  Vahle  v.  Brackenseck,  145  111.  231; 
People  v.  McConnell,  155  111.  192. 

Of  the  resignation  of  a  judge.     People  v.  McConnell,  155  111.  192. 

Of  attorneys.  Ferriss  v.  Com.  Nat.  Bank,  55  111.  App.  218; 
Kuehne  v.  Goit,  54  111.  App.  596. 

That  a  certain  firm  are  attorneys-at-law.  Ferriss  v.  Com.  Nat. 
Bank,  158  111.  237. 

Of  the  records  of  the  court  itself.      Rochester  v.  Brown,  82  111.  279. 

Of  an  order  in  the  case  at  bar.  Barley  v.  Kerr,  180  111.  412,  54 
'J.  E?  165. 

Of  a  record  on  a  former  appeal.  World's  Columbian  Exposition 
Co.  v.  Lehigh,  94  111.  App.  433. 

Of  the  jurisdiction  of  the  Supreme  Court  of  another  commonwealth. 
Rae  v.  Hurlbut,  17  111.  572,  577. 

Public  officers. —  Of  who  are  public  officers.  Dyer  v.  Flint,  21  111. 
80;  Brush  v.  Lemma,  77  111.  496;  Stout  v.  Slattery,  12  111.  162; 
Dyer  v.  Last,  51  111.  179;  Thielmann  v.  Burg,  73  111.  293. 

Of  the  residence  of  a  notary.      Hertig  v.  People,  159  111.  237. 

Customs. —  Of  certain  customs.      Munn  v.  Burch,  25  111.  35. 

Of  the  usual  mode  of  transacting  business.  Nash  v.  Classen,  163 
111.  409. 

That  a  letter  mailed  at  Utica,  111.,  will  ordinarily  reach  Des  Moines, 
Iowa,  within  seven  or  eight  days.  National  Masonic  Accident  Assn.  v. 
Seed,  95  111.  App.  43. 

Geographical  facts. —  Of  the  organization  of  a  township.  County 
of  Rock  Island  v.  Steele,  31  111.  543. 

Of  a  township  number.      Kile  v.  Yellowhead,  80  111.  208. 

Of  the  location  of  towns  and  counties.  People  v.  Suppiger,  103 
111.  434. 

Of  subdivisions  of  city  and  town  land  in  questions  of  homestead. 
Sever  v.  Lyon,  170  111.  395,  48  N.  E.  926. 

Of  the  counties  in  Illinois.     Higgins  v.  Bullock,  66  111.  37. 

That  a  city  was  incorporated  under  the  law  of  1872.  Brush  v. 
Lemma,  77  111.  496. 

Of  the  population  of  various  counties.  Worcester  Nat.  Bank  v. 
Cheney,  94  111.  430. 

Of  the  meaning  of  initials  employed  in  describing  land.  Paris  v. 
Lewis,  85  111.  597;  Kile  v.  Yellowhead,  80  111.  208. 

Facts  commonly  known. —  Of  facts  commonly  observed.  C,  B.  <£ 
Q.  R.  R.  Co.  v.  Warner,  108  111.  538. 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  321 

That  the  owner  of  an  omnibus  line  is  a  common  carrier.  Parmalee 
v.  McNulty,  9  111.  556. 

Of  the  nature  of  a  clearance  card  given  by  a  railroad  to  its  em- 
ployee. C,  C,  C.  &  St.  L.  Ry.  Co.  v.  Jenkins,  174  111.  398,  reversing 
75  111.  App.  17. 

Of  the  current  rate  of  exchange.     Lowe  v.  Bliss,  24  111.  169. 

Public  facts. —  Of  the  result  of  an  election  as  to  removing  a  county 
seat.      Andrews  v.  Knox  County,  70  111.  65. 

Of  what  appropriation  had  been  made  for  a  capitol  and  its  locality. 
People  v.  Stuart,  97  111.  123. 

That  a  city  had  been  incorporated  under  the  general  law.  Potwin 
v.  Johnson,  108  111.  70. 

Of  the  incorporated  cities  of  Illinois.  Spring  Valley  v.  Spring 
Valley  Coal  Co.,  71  111.  App.  432. 

Of  the  Federal  census.  C.  &  A.  Ry.  Co.  v.  Baldridge,  172  111.  329, 
52  N.  E.  263. 

Of  the  meaning  of  "  Sec.  23,  38,  14."  McChesney  v.  Chicago,  173 
111.  75,  50  N.  E.  191. 

Qualities  ef  matter. —  The  court  will  take  judicious  notice  that 
whiskey  is  intoxicating.  WassQn  v.  First  Nat.  Bank,  107  Ind.  206, 
219;  State  v.  Jones,  3  Ind.  App.  121,  122. 

That  brandy  is  intoxicating.     Fenton  v.  State,  100  Ind.  598,  599. 

That  beer  is  a  malt  liquor,  and  that  it  is  intoxicating  (overruling 
Lathrope  v.  State,  50  Ind.  555;  Schlosser  v.  State,  55  Ind.  82;  Shaw 
v.  State,  56  Ind.  188;  Plunkett  v.  State,  69  Ind.  68,  and  Kurz  v. 
State,  79  Ind.  488)  ;  Myers  v.  State,  93  Ind.  251,  253;  Mullen  v.  State, 
96  Ind.  304,  306;  Dant  v.  State,  106  Ind.  79,  80;  Wasson  v.  First 
Nat.  Bank,  107  Ind.  206,  219.   See  also  Elare  v.  Smith,  43  Ind.  483. 

That  natural  gas  is  dangerous,  inflammable  and  explosive.  Jamie- 
son  v.  Indiana  Natural  Gas  &  Oil  Co.,  128  Ind.  555,  12  L.  R.  A.  652, 
28  N.  E.  76. 

The  court  will  not  take  judicial  notice  that  wine  is  not  intoxicat- 
ing.   Jackson  v.  State,  19  Ind.  312. 

As  to  the  amount  of  leakage  from  natural  gas  mains.  Mississinewa 
Min.  Co.  v.  Patton,  129  Ind.  127,  28  Am.  St.  Rep.  203,  28  N.  E.  1113. 

Judicial  matters. —  The  court  will  take  judicial  notice  of  the 
time  and  duration  of  terms  of  court  as  fixed  by  law.  McCrory  v. 
Anderson,  103  Ind.  12,  15;  Carmody  v.  State,  105  Ind.  546,  550; 
Durre  v.  Brown,  7  Ind.  App.  127,  34  N.  E.  577. 

21 


322  A  DIGEST  OF  [Pabt  EL 

Of  the  terms  of  other  courts  in  different  counties  in  the  State. 
Taylor  v.  Canaday,  155  Ind.  671;  Sanders  v.  Hartze,  17  Ind.  App.  243. 

Of  the  sessions  of  the  Circuit  Courts  in  the  various  counties  when 
the  question  arises  in  the  Supreme  Court.  McGinnis  v.  State,  24 
Ind.  500. 

Of  its  own  officers,  and  the  genuineness  of  their  signatures. 
Hipes  v.  State,  73  Ind.  39,  40;  Mount  joy  v.  State,  78  Ind.  172,  174; 
Choen  v.  State,  85  Ind.  209,  210;  Beller  v.  State,  90  Ind.  448,  449; 
Deitz  v.  State,  123  Ind.  85,  86;  Hammann  v.  Mink,  99  Ind.  279. 

Of  the  signature  of  the  clerk.     Buell  v.  State,  72  Ind.  523. 

Of  the  persons  who  are  judges  of  the  Circuit  Courts,  the  question 
arising  in  the  Supreme  Court.     Negley  v.  Wilson,  14  Ind.  215. 

Of  the  previous  orders  in  the  case.  Cluggish  v.  Koov°,  15  Ind. 
App.  599,  609;  Mode  v.  Beasley,  143  Ind.  306,  325.  (Inspecting  its 
records  even  in  another  case,  either  on  its  own  motion  or  on  the 
motion  of  counsel),  Berry  v.  State,  144  Ind.  503,  517. 

The  court  icill  not  take  judicial  notice  of  the  records  and  proceed- 
ings in  another  case  in  the  same  court.  Grusenmeyer  v.  City  of  Lo' 
gansport,  76  Ind.  549,  552;  Le  Plante  v.  Lee,  83  Ind.  155,  156. 

Public  events. —  The  court  will  take  judicial  notice  of  matters  of 
public  history.  Williams  v.  State,  64  Ind.  553,  31  Am.  Rep.  135; 
Ueuthorn  v.  Shepherd,  1  Blackf.  157;  Brooke  v.  Filer,  35  Ind.  402 
(Civil  War)  ;   Carr  v.  McCampoell,  61  Ind.  97    (Clarke's  grant). 

Of  the  results  of  the  United  States  census.  Stultz  v.  State,  65  Ind. 
492;  Hawkins  v.  Thomas,  3  Ind.  App.  399,  29  N.  E.  157.. 

Of  a  proclamation  of  the  Governor.  Dunning  v.  N.  A.  &  S.  R.  Go.y 
2  Ind.  437. 

That  national  bank  stock  constitutes  a  considerable  part  of  the 
capital  of  the  State.  Wesson  v.  First  Nat.  Batik,  107  Ind.  206,  8 
N.  E.  97. 

Of  the  accession  of  the  President  or  Governor.  Hizer  v.  State,  12 
Ind.  330. 

That  the  trustee  of  the  civil,  is  also  trustee  of  the  school,  town- 
ship.   Inglis  v.  State,  61  Ind.  212. 

That  the  requisite  steps  for  the  relocation  of  the  county  seat  of 
Crawford  county  were  taken.  Mode  v.  Beasley,  163  Ind.  306,  42 
N.  E.  727. 

Of  the  fact  that  certain  records  were  kept  in  the  office  of  the  State 
Adjutant-General.     Monroe  County  Comrs.  v.  May,  67  Ind.  562. 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  323 

The  court  will  not  take  judicial  notice  of  the  time  of  division  of 
counties  and  the  erection  of  new  ones  by  commissioners  under  the 
general  law.     Buckinghouse  v.  Gregg,  19  Ind.  401. 

Geographical  facts. —  The  court  will  take  judicial  notice  of  the 
prominent  geographical  features  of  the  country.  Hays  v.  State,  8 
Ind.  425;  Mossman  v,  Forrest,  27  Ind.  233;  Terre  Haute,  etc.,  R.  R. 
Co.  v.  Pierce,  95  Ind.  49G,  502;  Wasson  v.  First  Nat.  Bank,  107  Ind. 
206,  220;  Peck  v.  Sims,  120  Ind.  345,  348;  Board,  etc.  v.  Castctler. 
7  Ind.  App.  309,  312. 

Of  the  general  geographical  features  of  their  own  country,  State,. 
or  judicial  district  as  to  the  existence  and  location  of  its  principal 
mountains,  rivers,  and  cities.      Mossman  v.  Forrest,  27  Ind.  233,  236. 

Of  the  political  divisions  of  the  State.  Indianapolis  R.  R.  Co.  v. 
Stephen.  28    Ind.   429. 

Of  a  county  created  by  public  statute.  Buckinghouse  v.  Gregg, 
19  Ind.  401. 

Of  the  county  where  certain  places  are  located.  Indianapolis  &  C 
R.  R.  Co.  v.  Case,  15  Ind.  42;  L.,  N.  A.  &  C.  By.  Co.  v.  McAfee,  15 
Ind.  App.  442,  43  X.  E.  36;  Indianapolis  &  C.  R.  R.  Co.  v.  Stephens, 
28  Ind.  429. 

Of  the  area  of  a  county.  Jasper  County  Comrs.  v.  Spiller,  13 
Ind.  235. 

Of  the  national  surveys  and  of  the  boundaries  of  counties.  Dutch 
v.  Boyd,  81  Ind.  146,  148;  Wilcox  v.  Moudy,  82  Ind.  219.  220:  Broun 
v.  Ogg,  85  Ind.  234,  236;  Keepfer  v.  Force,  86  Ind.  81,  87;  Broun  v. 
Anderson,  90  Ind.  93,  95;  Richardson  v.  Hedges,  150  Ind.  53;  Stock- 
well  v.  State  ex  rel.,  101  Ind.  1,  7;  Bryan  v.  Seholl,  109  Ind.  367, 
371;  Dawson  v.  James,  64  Ind.  162;  Mossman  v.  Forrest,  27  Ind. 
233;  Murphy  v.  Hendricks,  57  Ind. .593;  Burton  v.  Ferguson,  69  Ind. 
486;  Buchanan  v.  Whitam,  36  Ind.  257  (Ripley  county  lands)  ; 
Bannister  v.  Grassy  Fork  Ditching  Assn.,  52  Ind.  178;  Rich  v. 
Grassy  Fork  Ditching  Assn.,  52  Ind.  187. 

Of  the  location  of  counties  with  reference  to  each  other.  Denny 
v.  State,  144  Ind.  503;  Board,  etc.  v.  State,  147  Ind.  476. 

Of  the  various  county  seats.    Mode  v.  Beasley,  143  Ind.  306. 

Whether  or  not  they  are  incorporated.  Thorntoicn  v.  Fingate,  21 
Ind.  App.  537. 

And  if  incorporated  —  of  the  incorporating  statute.  Evansville  v. 
Frazer,  24  Ind.  App.  628. 

Of  county  boundaries,  and  that  a  certain  distance  from  a  certain 
place  is  within  the  same  county,  the  question  arising  in  the  Supreme 


324  A  DIGEST  OF  [Part    II. 

Court.  Louisville,  etc.,  Ry.  Co.  v.  Breckenridge,  64  Ind.  113,  on 
this  point  overruled;  Terre  Haute,  etc.,  R.  R.  Co.  v.  Pierce,  95  Ind. 
496,  502;  Wasson  v.  First  Nat.  Bank,  107  Ind.  206,  220. 

Of  the  county  in  which  is  located  land  described  by  township  and 
range.    Bryan  V.  Scholl,  109  Ind.  367,  370. 

Of  the  county  in  which  a  highway,  passing  through  lands  de- 
scribed by  sections,  townships,  and  ranges,  is  located.  Adams  v. 
Harrington,  114  Ind.  66,  72,  14  N.  E.  603. 

Of  the  county  in  which  is  located  a  public  ditch  going  between 
named  points  and  passing  through  lands  described  by  section,  town- 
ship, and  ranges.    Smith  v.  Clifford,  99  Ind.  113,  115. 

Of  the  position  of  towns  in  a  county.  Indianapolis  d  C.  R.  R.  Co. 
V.  Stephens,  28  Ind.  429. 

Of  the  mode  of  subdividing  congressional  townships  into  sections. 
Mossman  V.  Forrest,  27  Ind.  233. 

As  to  what  subdivisions  in  a  section  of  land  are  fractional  parts. 
Peck  v.  Sims,  120  Ind.  345,  348 ;  State  ex  rel.  v.  Gramelspacher,  126 
Ind.  398,  403. 

Of  the  position  of  the  falls  of  the  Ohio.  Cash  v.  Auditor  of  Clark 
.County,  7  Ind.  227. 

That  White  river  in  Marion  county  is  not  a  navigable  stream. 
Ross  v.  Faust,  54  Ind.  471,  23  Am.  Rep.  655. 

Of  the  course  of  the  Ohio  river.     Hays  v.  State,  8  Ind.  425. 

Of  the  location  of  cities  and  towns,  and  in  what  counties  they  are. 
Louisville,  etc.,  R.  R.  Co.  v.  Hixon,  101  Ind.  337,  338. 

Of  the  facilities  of  travel  between  certain  points,  and  the  time  re- 
quired. Fitzpatrick  v.  Papa,  89  Ind.  17;  20;  Wasson  v.  First  Nat. 
Bank,  107  Ind.  206,  220. 

Of  the  usual  route  and  tbe  speed  of  travel  from  a  point  in  In- 
diana (i.  c,  Centreville),  to  one  in  New  York  (i.  c.,  Rochester),  (dis- 
tinguishing 1  Blackf.  400).  Hipes  v.  Cochran,  13  Ind.  175;  Manning 
v.  Gasharie,  27  Ind.  399. 

Of  the  navigation  or  navigability  of  streams.  Neaderhouser  v. 
State,  28  Ind.  257.      - 

Of  the  time  when  counties  were  divided  and  new  ones  expected 
by  commissioners  under  the  general  law.  Buckinghouse  v.  Gregg, 
19  Ind.  401. 

That  a  particular  legal  subdivision  of  a  section  is  not  practical. 
Peck  v.  Sims,  120  Ind.  345,  22  N.  E.  313. 

Of  the  location  of  stations  on  railroads.    Louisville,  etc.,  R.  R.  Co. 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  325 


v.  McCaffee,  15  Ind.  App.  442 ;  Indianapolis  &  C.  R.  R.  Co.  v.  Case,  15 
Ind.  42;  Indianapolis  &  C.  R.  R.  Co.  v.  Stephens,  28  Ind.  429. 

The  court  ivill  not  take  judicial  notice  of  the  precise  boundaries 
of  the  political  divisions  of  the  State  further  than  described  in  pub- 
lic statutes.     Indianapolis  &  C.  R.  R.  Co.  v.  Stephens,  28  Ind.  429. 

Of  the  limits  of  a  town  or  city.  Qrusenmeyer  v.  City  of  Logans- 
port,  76  Ind.  549,  552;  City  of  Indianapolis  v.  McAvoy,  86  Ind.  587, 
589;  Town  of  Cicero  v.  Williamson,  91  Ind.  541,  542. 

As  to  whether  a  railroad  company  owns  and  operates  a  road 
through  a  particular  county.  Indianapolis  &  G.  R.  R.  Co.  v.  Ste- 
phens, 28  Ind.  429;  Indianapolis  &  C.  R.  R.  Co.  v.  Kibby,  28  Ind.  479. 

As  to  whether  we  are  at  war  or  peace  with  a  certain  nation. 
Baby  v.  Dubois,  1  Blackf.  255. 

Relations  with  foreign  nations. —  The  court  takes  judicial  notice. 

Course  of  nature,  etc. —  The  court  will  take  judicial  notice. 

The  course  of  the  seasons  and  of  husbandry  and  that  the  use  of 
land  is  worth  more  during  the  cropping  season  than  in  winter.  Ross 
V.  Boswell,  60  Ind.  235. 

Of  the  days  on  which  fall  Sundays  and  holidays.  Swales  v.  Grubbs, 
126  Ind.  106,  110,  25  N.  E.  877;  Chrisman  v.  Tuttle,  59  Ind.  155. 

Or  other  days.  Williamson  v.  Brandenberg,  6  Ind.  App.  97,  32 
N.  E.  1055. 

Of  the  usual  method  of  computing  time.  Hedderich  v.  State,  101 
Ind.  564,  571,  1  N.  E.  47,  51  Am.  Rep.  768. 

That  twenty  years  had  not  elapsed  from  April  23,  1842,  to  January 
30,  1862.     Harding  v.  Third  Presbyterian  Church,  20  Ind.  71. 

Of  seed  time  and  harvest.  Abshire  v.  Mather,  27  Ind.  381  (suit 
on  note  due  "after  harvest"). 

Of  the  laws  of  nature,  including  electricity.  City  of  Crawfordsville 
V.  Braden,  130  Ind.  149,  158. 

The  court  will  not  take  judicial  notice  of  the  various  modes  of 
generating,  transmitting,  and  using  electricity.  City  of  Craicfords- 
ville  V.  Braden,  130  Ind.  149,  158. 

Meaning  of  words. —  The  court  will  take  judicial  notice  of  the  usual 
abbreviations.     Heddrich  v.  State,  101  Ind.  564,  571. 

Such  as  "  C  O  D."  United  States  Express  Co.  v.  Keefer,  59  Ind. 
263. 

That  the  abbreviation  "  otcb."  in  a  scire  facias,  stands  for  October. 
Reams  v.  State,  3  Blackf.  334. 


326  A  DIGEST  OF  [Part    II. 

That  a  note  payable  at  "  Citizens'  Bank,  Noblesville,  Ind.,"  is 
payable  in  Indiana.    Burroughs  v.  Wilson,  59  Ind.  536. 

Matters  of  general  knowledge. —  The  court  takes  judicial  notice 
of  matters  of  general  knowledge.  Eeddrich  v.  State,  101  Ind.  564, 
571;  Indianapolis,  etc.,  Ry.  Co.  v.  Clay,  4  Ind.  App.  282,  285. 

That  employees  of  a  bank  other  than  the  cashier  must  have  access 
to  the  funds.  La  Rose  v.  Logansport  Nat.  Bank,  102  Ind.  332,  1 
N.  E.  805. 

The  court  will  not  take  judicial  notice  of  the  fact  that  a  signature 
in  script,  purporting  to  be  written,  was  placed  there  by  some  me- 
chanical contrivance.    Rosenstein  v.  State,  9  Ind.  App.  290,  291. 

That  electric  light  is  safer  and  more  healthful  than  ordinary  light. 
City  of  Crawfordsville  v.  Braden,  130  Ind.  149,  159. 

Of  the  mode  in  which  business  is  usually  carried  on  by  insurance 
agents.     Eoive  v.  Provident  Fund  Soc,  7  Ind.  App.  586,  594. 

Of  the  duties  of  railroad  trainmen.  Indianapolis,  etc.,  Ry.  Co.  v. 
Clay,  4  Ind.  App.  282,  2S5. 

Of  reasonable  time  for  a  passenger  train  to  stop  under  ordinary  cir- 
cumstances (i.  e.,  three  minutes).  Louisville,  etc.,  R.  R.  Co.  v.  Cos- 
tello,  9  Ind.  App.  462,  468. 

As  to  whether  a  fence  sufficient  to  restrain  sheep  will  restrain  hogs. 
Endere  v.  McDonald,  5  Ind.  App.  297,  31  N.  E.  1056. 

Changing  rules. —  By  making  provisions  as  to  proof  of  facts,  the 
statute  may  change  the  rule  otherwise  in  force  as  to  judicial  notice 
of  such  facts.     People  v.  Murphy,  93  Mich.  41. 

New  Jersey. 

Of  what  judicial  notice  will  be  taken. —  Judicial  notice  will  be 
taken  of  the  value  of  coins  (State  v.  Stimson,  4  Zab.  9)  ;  of  dis- 
tances (State  v.  Ferguson,  31  X.  J.  L.  289)  ;  of  occupation  of  streets 
by  horse  railroads  (Jersey  City  &  B.  Co.  v.  Jersey  City  &  E.  Co., 
20  N.  J.  Eq.  61)  ;  of  an  estuary  of  the  sea  (Edwards  v.  Elliott,  21 
Wall.  532);  of  cities  [State  v.  Eelmes,  3  N.  J.  L.  600);  of  the 
waters  of  Raritan  bay  as  tidal  waters  (Metzger  v.  Post,  44  N.  J.  L. 
77)  ;  of  the  ordinary  meaning  of  words  (Smith  v.  Clayton.  29 
N.  J.  L.  367)  ;  of  the  almanac,  from  which  it  appears  that  a  certain 
date  fell  on  a  Sunday  (Reed  v.  Wilson,  41  N.  J.  L.  29);  of  the 
Constitution   of   another    State    (Curtis   v.    Martin,   Pen.   399.     See 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  327 

Print  Works  v.  Lawrence,  3  Zab.  595)  ;  of  the  law  merchant  as  a 
part  of  the  common  law  (Reed  v.  Wilson,  41  N".  J.  L.  29)  ;  of  the 
provisions  of  public  acts  of  the  Legislature  (Newark  v.  Stout,  52 
N.  J.  L.  35;  Stephens,  etc.,  Co.  v.  Central  R.  Co.,  3:j  X.  J.  L.  229; 
.Rader  v.  E7nio«  YV/>.,  39  X.  J.  L.  509,  43  N.  J.  L.  518)  :  of  the  fact 
that  a  wall  near  windows  will  materially  diminish  the  supply  of 
light  and  air  (Ware  v.  Chew,  43  N.  J.  Eq.  493)  ;  that  blowing  a 
whistle  is  a  customary  railroad  signal  (Bit tie  v.  Railroad,  55 
X.  J.  L.  615)  ;  of  the  fact  that  the  return  on  safe  investments  has 
been  diminishing   (Collins  v.  Wardell,  63  X.  J.  Eq.  371). 

When  the  charter  of  a  city  is  declared  to  be  a  public  act,  supple- 
ments thereto  will  also  be  judicially  noticed.  Stephens,  etc.,  Co.  v. 
Central  R.  Co.,  33  N.  J.  L.  229;  Hawthorne  v.  Hobokcn,  32  X.  J.  L. 
172. 

Laws  of  other  States. —  Judicial  notice  of  the  printed  statutes  and 
decisions  of  other  States.     G.   S.   189.',  "  Evidence,"  22.  2:!. 

Of  what  judicial  notice  will  not  be  taken.— Judicial  notice  will 
not  be  taken  of  the  appointment  of  a  justice  of  the  peace  (Stale  v. 
Hutchinson,  5  Hal.  242.  But  see  Campbell  v.  Dewick,  20  X.  .1.  Eq. 
186);  of  the  laws  of  other  States  and  nations  (Campion  v.  Kille, 
14  N.  J.  Eq.  229.  15  X.  .1.  Eq.  470:  Gondii  v.  Blackwell,  19  X.  J. 
Eq.  193;  Uhler  v.  Semple,  20  X.  J.  Eq.  288:  Ball  v.  Franklmite  Co., 
32  N.  J.  L.  10*2)  :  of  private  acts  of  the  Legislature  (Bridge  Co.  v. 
Perdicaris.  29  X.  J.  L.  367;  Black  v.  Canal  Co.,  24  X.  J.  Eq.  455, 
480)  ;  of  the  seal  on  a  diploma  of  the  New  Jersey  Medical  Society 
(Vaughn  v.  Hanlinson,  35  X.  J.  L.  79);  of  a  custom  of  a  board 
of  freeholders    (Morris  v.  Freeman,    1-1   X.  J.   L.  634). 

Ordinances  of  a  subdepartment  of  a  city  will  not  he  judicially 
noticed  by  the  police  justice  of  the  city  as  a  whole.  State  v.  Tren- 
ton, 51  X.  J.  L.  495;   Wright  v.  Trenton,  51   X.  J.  L.   497. 

A  court  is  not  required  to  notice  judicially  that  bankruptcy  pro- 
ceedings have  been  begun  against  a  parly  to  a  pending  suit.  Ester- 
brook  v.  Ahem,  30  X.  J.  Eq.  341. 

Maryland. 

Of  what  judicial  notice  will  be  taken. —  The  court  will  take  ju- 
dicial notice  of  the  public  acts  of  the  Legislature  (Dai/  v.  Day,  22 
Md.  530;  State  v.  Jarrett,  17  Md.  309;  Brady  v.  State,  26  Md.  290; 
Toioson  v.  Havre  de  Grace,  6  H.  &  J.  47)  ;   of    acts    of    Congress 


328  A  DIGEST  OF  [Paet  II. 

(Eastwood  v.  Kennedy,  44  Md.  503)  ;  of  the  political  relations  of 
countries  (Stewart  v.  Mcintosh,  4  H.  &  J.  233;  ;  of  the  regulations 
of  the  Land  Office  in  relation  to  property  (Hammond's  Lessee  v. 
Warfield,  2  H.  &  J.  151);  of  public  local  laws,  as  well  as  general 
(Slym&r  v.  State,  62  Md.  237)  ;  of  facts  of  history  (Wiry man  v. 
Mactier,  1  G.  &  J.  150)  ;  of  a  private  act  of  the  Legislature  when 
it  affects  the  charter  of  a  corporation  which  is  a  public  law 
(Planters'  Bank  v.  Bank  of  Alexandria,  10  G.  &  J.  346)  ;  of  the 
calendar,  including  the  days  of  the  week  upon  which  the  days  of 
the  month  fall  (Railroad  Co.  v.  Lehman,  56  Md.  209;  Kilyour  v. 
Miles,  6  G.  &/J.  268;  Ecker  v.  Bank,  64  Md.  292)  ;  of  dies  non  ju- 
ridici,  Sundays,  Christmas,  and  the  like  (Sasscer  v.  Bank,  4  Md. 
409)  ;  of  the  meaning  of  common  expressions  (Baltimore  v.  State, 
15  Md.  376,  484)  ;  of  the  boundaries  of  the  counties  of  the  State 
(Acton  v.  State,  80  Md.  547). 

The  difference  between  a  faro  table  and  a  billiard  table  is  of  such 
notoriety  that  the  court  will  take  judicial  notice  of  it.  State  v. 
Price,  12  G.  &  J.  200. 

Judicial  notice  will  be  taken  of  acts  of  the  Legislature  concerning 
the  local  affairs  of  counties  and  election  districts.  Higgins  v. 
State,  64  Md.  419. 

An  appellate  court,  in  reviewing  the  judgment  of  an  inferior 
court,  does  not  take  judicial  notice  of  the  latter's  rules  of  prac- 
tice. Cherry  v.  Baker,  17  Md.  75.  See  Oliver  v.  Palmer,  11  G.  &  J. 
426. 

The  seal  of  a  court  of  this  State  proves  itself;  but  the  seal  of  a 
court  of  a  foreign  country  must  be  authenticated  by  evidence.  De 
Sobry  v.  De  Laistre,  2  H.  &  J.   191. 

Courts  take  judicial  notice  of  acts  of  Congress  of  a  public  char- 
acter.    Dickey  v.  Bank,  89  Md.  280. 

Judicial  notice  will  be  taken  of  a  statute  authorizing  clerks  of 
court  to  accept  a  certain  corporation  as  sole  surety  on  bonds. 
Miller  v.  Matthews,  87  Md.  464. 

Courts  will  take  judicial  notice  of  public  statutes  fixing  the 
duties  of  public  officers.     Graham  v.  Harford  Co..  87  Md.  321. 

Courts  take  judicial  notice  of  a  usage  of  such  universal  prevalence 
that  it  has  become  part  of  the  existing  law.  Insurance  Co.  v.  Wil- 
son, 2  Md.  217. 

Of  what  judicial  notice  will  not  be  taken. —  The  court  will  not 
take  judicial  notice  of  a  private  act  of  the  Legislature   {Whitcrofi 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  329 

v.  Dorset/,  3  H.  &  McH.  357)  ;  of  municipal  ordinances  (Bank  v. 
Baltimore,  71  Md.  515;  Shanfelter  v.  Baltimore,  80  Aid.  483;  Field 
v.  Malster,  88  Md.  691)  ;  of  the  character  of  the  disease  of  glanders 
[State  v.  /'o.r,  79  Md.  514). 

The  court  cannot  take  judicial  notice  of  the  result  of  a  loca; 
option  election.     Whitman  v.  State,  80  Md.  410. 

Laws  of  foreign  countries  must  be  proved  as  matters  of  fact. 
De  Sobry  v.  De  Laistre,  2  H.  &  J.  191;  Baptiste  v.  De  Volunbrun, 
5  H.  &  J.  86. 

Pennsylvania. 

Of  what  judicial  notice  will  be  taken. —  The  courts  will  take  ju- 
dicial notice  of  the  agreement  between  Lord  Baltimore  and  William 
Penn  as  to  the  boundary  (Thomas  v.  Stigers,  5  Pa.  480)  ;  of  a  pub- 
lic local  law  (Van  Swartow  v.  Corn.,  24  Pa.  131)  ;  of  the  laws  of 
a  sister  State  for  the  purpose  of  ascertaining  the  faith  and  credit 
required  to  be  given  them  by  the  United  States  Constitution  (Ohio 
v.  Hinchman,  27  Pa.  479)  ;  of  the  custom  of  merchants  to  charge 
interest  on  goods  sold  after  six  months  (Koons  v.  Miller,  3  W.  &  S. 
271;  Watt  v.  Hoch,  25  Pa.  411)  ;  of  the  official  character  of  a  jus- 
tice of  the  peace  (Hibbs  v.  Blair,  14  Pa.  413;  Kilpatrick  v.  Com., 
31  Pa.  198)  ;  that  a  local  election  has  been  held  deciding  adversely 
to  license  (Ranch  v.  Com.,  78  Pa.  490)  ;  of  the  time  the  suit  was 
begun  (Withers  v.  Gillespy,  7  S.  &  R.  10)  ;  of  the  aldermen  of  Phila- 
delphia as  public  officers  (Fox  v.  Com.,  81  Pa.  511)  ;  of  the  official 
acts  of  a  collector  of  internal  revenue  and  his  deputy  (Lerch  v. 
Snyder,  112  Pa.  161)  ;  of  the  corporate  seal  of  a  city  (Duffey  v. 
Presb.  Congregation,  48  Pa.  46)  ;  of  the  division  of  counties  into 
boroughs  (Borough  v.  Brown,  11  Pa.  Co.  Ct.  272)  ;  of  the  distance 
between  cities  and  the  usual  running  time  of  trains  between  (Pearce 
v.  Langfit,  101  Pa.  507)  ;  of  the  calendar  and  computation  of  time 
(Hautch  v.  Levan,  1  Woodw.  Dec.  456;  Wilson  v.  Van  Leer,  127 
Pa.  371. 

Appellate  courts  will  take  judicial  notice  of  the  persons  who 
occupy  the  bench  in  inferior  courts.  Kilpatrick  v.  Com.,  31  Pa. 
198. 

The  seal  of  the  United  States  Circuit  Court  proves  itself.  Wil- 
liams v.  Wilkes.  14  Pa.  228. 

Of  what  judicial  notice  will  not  be  taken. —  Judicial  notice  will 
not  be  taken  of  a  private  statute   (Handy  v.  Railroad  Co.,  1  Phila. 


330  A  DIGEST  OF  [Part  II. 

31;  Packer  v.  C'om'rs,  1  Pittsb.  249;  Timlow  v.  Railroad  Co.,  99  Pa. 
284)  ;  of  a  special  act  for  the  survey  of  a  particular  tract  (Alle- 
gheny v.  Nelson,  25  Pa.  332)  ;  of  the  charter  of  a  bank  (Clarion 
Nat.  Bank  v.  Gruber,  87  Pa.  468)  ;  of  the  laws  of  sister  States 
(Ripple  v.  Ripple,  1  Rawle,  386;  Electric  Co.  v.  Geiger,  147  Pa.  399). 


Article  59. 
as  to  proof  of  such  facts. 
!No  evidence  of  any  fact  of  which  the  Court  will  take 
judicial  notice  need  be  given  by  the  party  alleging  its 
existence;  but  the  judge,  upon  being  called  upon  to  take 
judicial  notice  thereof,  may,  if  he  is  unacquainted  with  such 
fact,  refer  to  any  person  or  to  any  document  or  book  of 
reference  for  his  satisfaction  in  relation  thereto,  or  may 
refuse  to  take  judicial  notice  thereof  unless  and  until  the 
party  calling  upon  him  to  take  such  notice  produces  any 
such  document  or  book  of  reference.15 


AMERICAN  NOTE. 
General. 

Authorities. —  McKelvey  on  Evidence,  p.  36;  1  Taylor  on  Evi- 
dence ( Chamberlayne's  9th  ed.),  p.  2139;  Wagner's  Case,  61  Me. 
178;  Nix  v.  Redden,  149  U.  S.  304;  Vahle  v.  Brackenseik,  145  111. 
236;  Bowen  v.  Mo.  Pac.  R.  Co.,  118  Mo.  541;  Hefferman  v.  Harvey, 
41  W.  Va.  766;  Wilson  v.  Van  Leer,  127  Pa.  372;  State  v.  Clare,  5 
la.  509 ;  State  v.  Morris,  47  Conn.  179. 

Evidence  is  inadmissible  of  that  of  which  courts  take  judicial 
notice.  White  v.  Phcsnix  Ins.  Co.,  83  Me.  279,  22  Atl.  167;  Com.  v. 
Marzynski,  149  Mass.  72,  21  N.  E.  228. 

15  Taylor  (from  Greenleaf),  s.  21.  E.g.  a  judge  will  refer  in  case 
of  need  to  an  almanac,  or  to  a  printed  copy  of  the  statutes,  or  write 
to  the  Foreign  Office,  to  know  whether  a  State  has  been  recognised. 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  331 

Facts  of  which  the  courts  take  judicial  notice  need  not  be  proved. 
Secrist  v.  Petty,  109  111.  188;   Yahle  v.  Brackenseik,  145  111.  236. 

No  evidence  of  facts  judicially  noticed. —  Evidence  is  not  to  be 
admitted  of  facts  judicially  noticed.  Rev.  Stat.,  1901,  sec.  377;  State 
ex  rel.  Brown  v.  Bailey,  16  Ind.  46;  followed  in  Mattock  v.  Ind.  &  III. 
Cent.  R.  R.  Co.,  10  Ind.  176;  State  v.  Downs,  14S  Ind.  324;  Ervin 
v.  State,  150  Ind.  332;  Grusenmayer  v.  City  of  Logansport,  76  Ind. 
549,  552;  Town  of  Albion  v.  Hetrick,  90  Ind.  545,  551;  Pennsylvania 
Co.  v.  Horton,  132  Ind.  189,  194. 

The  court  may  properly  charge  the  jury  that  a  certain  day  falls 
on  Sunday.     Swales  v.  Grubbs,  126  Ind.  106,  110. 

Not  to  be  pleaded. —  Matters  judicially  noticed  are  not  to  be 
pleaded.  City  of  Logansport  v.  Wright,  25  Ind.  512;  West  v.  Blake, 
4  rdackf.  234. 

Judge  informs  himself. —  The  court  informs  itself  as  best  it  can 
of  matters  of  which  it  is  to  take  judicial  notice.  State  ex  rel.  Brown 
v.  Bailey,  16  Ind.  46;  followed  in  Mattock  v.  Ind.  &  III.  Cent  R.  R. 
Co.,  16  Ind.  176. 

Maryland. 

Mode  of  ascertaining  facts  required  to  be  judicinlly  noticed. 
Boteler  v.  State,  8  Gill  &  J.  359;  Legg  v.  Annapolis,  42  Md.  203; 
Strauss  v.  Heiss,  48  Md.  292. 

Pennsylvania. 

Authority. —  Wilson  v.  Van  Leer,  127  Pa.  372. 

Article  60. 
evidence  need  not  be  given  of  facts  admitted. 

No  fact  need  be  proved  in  any  proceeding  which  the 
parties  thereto  or  their  agents  agree  to  admit  at  the  hearing, 
or  which  they  have  admitted  before  the  hearing  and  with 
reference  thereto,  or  by  their  pleadings.16  Provided  that 
in  a  trial  for  felony  the  prisoner  can  make  no  admissions 

16  R.  S.  C,  O.  XXXII.  The  fact  that  a  document  is  admitted  does 
not  make  it  relevant  and  is  not  equivalent  to  putting  it  in  evidence, 
per  James,  L.  J.,  in  Watson  v.  Rodwell,  1878,  11  Ch.  Div.  at  p.  150. 


332  A  DIGEST  OF  [Past  II. 

so  as  to  dispense  with  proof,  though  a  confession  may  be 
proved  as  against  him,  subject  to  the  rules  stated  in  Articles 
21-24.17 

AMERICAN  NOTE. 
General. 

Authorities. —  11  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.), 
p.  488;  Gould  on  Pleading,  chap.  3,  sec.  168;  Gulliver  v.  Fowler,  64 
Conn.  556,  566;  Waldron  v.  Waldron,  156  U.  S.  361;  McGowan  v. 
McDonald,  111  Cal.  57;  State  v.  Brooks,  99  Mo.  137;  Atkinson  v. 
Linden  Co.,  138  111.  187;  Musselman  v.  Wise,  84  Ind.  248. 

A  demurrer  is  not  an  admission  if  an  issue  of  fact  is  subse- 
quently joined.  State's  Attorney  v.  Branford,  59  Conn.  402,  414. 
See,  also,  Tyler  v.  Waddingham,  58  Conn.  389. 

Where  the  defendant  pleads  in  confession  and  avoidance,  the  plain- 
tiff is  not  required  to  prove  a  breach.  Cotheal  v.  Talmadge,  1  E.  D. 
Smith,  573. 

A  party  cannot  offer  evidence  to  controvert  his  admissions  contained 
in  the  pleadings.     Getty  v.  Hamlin,  46  Hun,  1. 

By  demurrer  facts  sufficiently  pleaded  are  admitted,  but  solely 
for  the  objects  of  the  argument  on  the  demurrer;  a  demurrer  cannot 
be  claimed  as  evidence  of  such  facts  when  the  case  goes  to  trial  upon 
the  issue  of  fact.  Gray  v.  Gray,  143  N.  Y.  354.  But  see  Cutler  v. 
Wright,  22  X.  Y.  472. 

A  demurrer  is  not  an  admission  if  an  issue  of  fact  is  subsequently 
joined.  Gray  v.  Gray,  143  N.  Y.  354.  See  Cutler  v.  Wright,  22  N.  Y. 
472. 

If  a  defendant  claims  that  the  plaintiff's  bill  of  particulars  admits 
his  counterclaim,  he  must  raise  this  point  at  the  trial  and  object  to 
evidence  offered  for  the  purpose  of  defeating  such  claim.  Case  v. 
Pharis,  106  N.  Y.  114. 

An  admission  in  an  answer  that  a  written  lease  sued  on  was  made, 
together  with  a  proving  of  his  own  signature  by  the  subscribing  wit- 
ness, cannot  be  objected  to  by  the  defendant  on  the  ground  of  want 
of  sufficient  identification  to  be  admissible.  Hall  v.  Beston,  59  N.  E. 
1123,  affirming  26  App.  Div.  105,  49  N.  Y.  Supp.  811. 

"  1  Ph.  Ev.  391,  n.  6.  In  R.  v.  Thornhill,  1838,  8  C.  &  P.,  Lord 
Abinger  acted  upon  this  rule  in  a  trial  for  perjury. 


Chap.  VII.]  THE  LAW  OF  EVIDENCE.  333 

Facts  admitted  in  the  pleadings  need  not  be  proved.  Orange  M. 
Co.  v.  Western  Assur.  Co.,  118  111.  398;  Fein  v.  Covenant  Mut.  Benefit 
Assn.,  60  111.  App.  275;  Atkinson  v.  Linden  Co.,  138  111.  187;  Grace 
v.  Ohio  Bldg.  Assn.,  G3  111.  App.  33!). 

One  has  no  right  to  prove  admitted  facts.  Cor.,  etc.,  Assn.  v. 
Spies,  114  111.  467;  La  Minie  v.  Carley,  114  111.  198;  Champaign  v. 
Maguire,  56  111.  App.  618. 

Parties  may  agree  on  the  evidence.    Bolton  v.  Johnson,  163  111.  234. 

Admissions  in  open  court  operate  as  estoppels.  Hensoldt  v.  Peters- 
burg, 63  111.  Ill;  Stribling  v.  Prettyman,  57  111.  371. 

Facts  admitted  in  an  affidavit  for  a  continuance  cannot  afterwards 
be  denied.  Supervisors  of  Fulton  County  v.  M.  &  W.  R.  R.  Co.,  21 
111.  368. 

Evidence  need  not  be  offered  of  facts  proved  by  the  other  side. 
Hesterberg  v.  Clark,  166  111.  241. 

But  an  incidental  remark  by  counsel  in  his  opening  statement  is 
not  such  an  admission  as  to  do  away  with  the  necessity  of  evidence 
on  the  part  of  the  other  side.  Lake  Erie,  etc.,  Co.  v.  Rooker,  13  Ind. 
App.  600. 

Facts  of  record. — Admissions  in  pleadings  are  conclusive.  Colter 
v.  Calloway,  68  Ind.  219;  Plankroad  Co.  v.  Stallcup,  62  Ind.  345; 
School  Town  v.  Grant,  104  Ind.  168. 

Admissions  on  the  trial  are  made  part  of  the  record  by  bills  of  ex- 
ceptions.    Clem  v.  State,  31  Ind.  480. 

Where  a  case  is  submitted,  the  facts  being  agreed  upon,  there  can 
be  no  recovery  unless  all  of  the  facts  are  covered  by  the  agreement. 
Brown  v.  Rogers,  61  Ind.  449. 

Facts  admitted. —  One  cannot,  by  admitting  a  fact,  exclude  proof 
offered  by  the  other  side.  Kimball,  etc.,  Co.  v.  Vroman,  35  Mich.  310; 
John  Hancock,  etc.,  Co.  v.  Moore,  34  Mich.  41;  Baumier  v.  Antiau, 
79  Mich.  509;  Decamp  v.  Scofield,  75  Mich.  449,  42  N.  W.  962. 

New  Jersey. 

Authorities. —  Wills  t.  McKinncy,  30  N.  J.  Eq.  465;  Warbassc 
v.  Insurance  Co.,  42  N.  J.  L.  203;  Schenck  v.  Schenck,  5  Hal.  276; 
Mitchell  v.  Mitchell,  26  N.  J.  Eq.  497;  Truax  v.  Truax,  Pen.  166; 
Bordine  v.  Combs,  3  Green,  412. 

Admission  by  counsel  that  a  document  is  lost  admits  soeondary 
evidence  without  further  evidence  of  loss.  Culver  v.  Culver,  31 
N,  J.  Eq.  448. 


334  A  DIGEST  OF  [Pabt  II.. 

Testimony  not  allowed  to  disprove  a  fact  admitted  in  the  plead- 
ings.    Evans  v.  Huffman,  5  N.  J.  Eq.  254. 

Admissions  in  open  court  dispense  with  the  necessity  of  evidence. 
Marsh  v.  Mitchell,  26  N.  J.  Eq.  497. 

Maryland. 

Where  the  defense  to  an  action  on  a  contract  under  seal  is  pay- 
ment, no  evidence  of  the  execution  of  the  contract  need  be  offered. 
Zihlman  v.  Glass  Co.,  74  Md.  303. 

Where  all  the  facts  are  admitted,  the  party  has  a  right  to  have 
the  jury  instructed  as  to  their  verdict.  Insurance  Co.  v.  Evans, 
9  Md.  1. 

Pennsylvania. 

The  admission  by  the  maker  of  a  note  that  the  signature  is  his- 
renders  proof  of  the  fact  unnecessary.  Williams  v.  Floyd,  11  Pa. 
499. 


Chap.  VIII.]  THE  LAW   OF  EVIDENCE.  335 


CHAPTEK  VIII. 

OF  ORAL  EVIDENCE. 

Article  61. 

proof  of  facts  by  oral  evidence. 

All  facts  may  be  proved  by  oral  evidence  subject  to  the 
provisions  as  to  the  proof  of  documents  contained  in  Chap- 
ters IX.,  X.,  XL,  and  XII. 

AMERICAN   NOTE. 
General. 

The  payment  of  a  mortgage  may  be  proved  by  parol.  Mauzey  v. 
Bowen,  8  Ind.  193;  Cowgill  v.  Wooden,  t  Blackf.  332. 

However,  parol  evidence  to  establish  a  resulting  trust  must  be 
received  with  great  caution.    Fausler  v.  Jones,  7  Ind.  277. 

Article  62.* 
oral  evidence  must  be  direct. 

Oral  evidence  must  in  all  cases  whatever  be  direct ;  that 
is  to  say — 

If  it  refers  to  a  fact  alleged  to  have  been  seen,  it  must  be 
the  evidence  of  a  witness  who  says  he  saw  it; 

If  it  refers  to  a  fact  alleged  to  have  been  heard,  it  must 
be  the  evidence  of  a  witness  who  says  he  heard  it ; 

*  See  Note  XXVII. 


336  A  DIGEST  OF  [Part  II. 

If  it  refers  to  a  fact  alleged  to  have  been  perceived  by 
any  other  sense  or  in  any  other  manner,  it  must  be  the 
evidence  of  a  witness  who  says  he  perceived  it  by  that  sense 
or  in  that  manner ; 

If  it  refers  to  an  opinion,  or  to  the  grounds  on  which  that 
opinion  is  held,  it  must  be  the  evidence  of  the  person  who 
holds  that  opinion  on  those  grounds. 

AMERICAN  NOTE. 
General. 

Authorities. — 12  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.), 
p.  488;  also  vol.   11,  p.  536;   Rea  v.  Harrington,  58  Vt.   181. 

A  witness  may  give  the  impression  if  gained  from  facts  person- 
ally perceived.  Humphries  v.  Parker,  52  Me.  502;  Leach  v.  Ban- 
crofts, 61  N.  H.  411;  Whitman  v.  Moreij,  63  N.  H.  448,  457;  Fiske 
v.  Gowing,  61  N.  H.  431;  State  v.  Ward,  61  Vt.  153;  Dexter  v.  Har- 
rison, 146  111.  169;  Lovejoy  v.  Hoioe,  55  Minn.  353;  Lait  v.  Hall,  71 
Cal.  149;  Devall's  Exc'r  v.  Darby,  38  Pa.  56;  Ala.  South.  R.  Co.  v. 
Hill,  93  Ala.  515.  But  not  otherwise.  Kingsbury  v.  Moses,  45  N.  H. 
222. 

Objects  may  be  shown  to  the  jury.  State  v.  Ward,  61  Vt.  153; 
Louisville,  etc.,  R.  Co.  v.  Wood,  113  Ind.  544;  Lanark  v.  Dougherty, 
153  111.  163;  Langworthy  v.  Green,  95  Mich.  93. 

The  property  in  dispute  may  be  inspected  by  the  trier.  McGar 
v.  Bristol,  71  Conn.  652. 

The  court,  in  its  discretion,  may  prevent  the  exhibition  to  the 
jury  of  what  would  be  indecent  or  offensive.  Knowles  v.  Crampton, 
55  Conn.  336. 

By  statute,  generally,  the  jury  may,  by  order  of  court,  be  taken 
to  view  property  in  controversy.  1  Thompson  on  Trials,  sec.  882, 
p.  168:  Vane  v.  Evanston,  150  111.  616. 

A  person  may  be  exhibited  to  the  jury.  Com.  v.  Emmons,  98 
Mass.  6 ;  Hermann  v.  State,  73  Wis.  248.  Contra,  Louisville,  etc.,  R. 
Co.  v.  Wood,  113  Ind.  544,  550. 

Photographs  may  be  admissible  evidence.  Dyson  v.  N.  Y.,  etc., 
R.  R.  Co.,  57  Conn.  9;  State  v.  Griswold,  67  Conn.  290;  Com.  v.  Rob- 


€iiap.  VIII.]  THE   LAW    OF   EVIDENCE.  337 

ertson,  162  Mass.  90;  Gilbert  v.  West  End  R.  R.  Co.,  160  Mass.  403; 
Miller  v.  Louisville,  etc.,  R.  Co.,  128  Ind.  16,  25  Am.  St.  Rep.  416; 
Kansas  City,  M.  d  B.  R.  R.  Co.  v.  Smith,  90  Ala.  25,  24  Am.  St.  Rep. 
753;  Udderzook  v.  Com.,  76  Pa.  St.  340;  White  Seicing  Machine  Co. 
v.  Gordon,  124  Ind.  495,  19  Am.  St.  Rep.  109.  ' 

A  photograph  is  secondary  evidence.  To  admit  it  without  proof 
of  its  correctness  is  error.  The  testimony  of  the  photographer  is 
not  essential.  That  of  any  one  with  knowledge  of  the  fact  of  its 
correctness  is  sufficient.  McGar  v.  Bristol,  71  Conn.  655;  Cunning- 
ham v.  Fair  Haven  d  Westville  R.  R.  Co.,  72  Conn.  251. 

The  preliminary  question  of  whether  it  is  a  correct  representation 
is  for  the  trial  court  and  will  not  be  reviewed.  Van  Houten  v. 
Morse,   162  Mass.  414,   422,   44   Am.   St.   Rep.   373. 

A  witness  may  probably  be  ordered  to  write  his  name  in  court 
where   his   signature   is   denied.     Smith   v.    King,    62    Conn.    521. 

Conversations  by  telephone  if  the  parties  can  recognize  the  voices 
of  one  another  are  admissible  evidence.  People  v.  Ward,  3  N.  Y.  Cr. 
511;  Murphy  v.  Jack,  142  N.  Y.  215,  40  Am.  St.  Rep.  590,  36  N.  E. 
882;  People  v.  McKane,  143  N.  Y.  455,  457. 

A  witness  may  give  the  impression  if  gained  from  facts  personally 
received.  Blake  v.  People,  73  N.  Y.  586.  But  not  otherwise.  Mather 
v.  Parsons,  32  Hun,  338.  See  Rickerson  v.  Hart  Ins.  Co.,  149  N.  Y. 
307;  Baylies  v.  Cockroft,  81  N.  Y.  363;  Mfrs.  d  Traders'  Bank  v. 
Koch,  105  N.  Y.  630;  Ward  v.  Kilpatrick,  85  N.  Y.  413;  Nicholay  v. 
Unger,  80  N.  Y.  54. 

A  party  may  testify  to  the  amount  received  by  him  upon  a  sale  at 
auction;  it  is  not  absolutely  necessary  to  call  the  auctioneer.  Reck- 
nagel  v.  Le  Cocq,  6  N.  Y.  St.  R.  527,  26  Wkly.  Dig.  241. 

Objects  exhibited. —  Objects  may  be  shown  to  the  jury.  People 
v.  Gonzalez,  35  N.  Y.  49;  King  v.  N.  Y.  C.  R.  Co.,  72  N.  Y.  607. 

Viewing  premises. —  The  jury  may  view  the  premises  in  course  of 
criminal  trial.    Code  Cr.  Pro.,  sec.  411. 

Photographs. —  A  photograph  or  drawing  may  be  introduced  in 
evidence  if  properly  verified.  Cowley  v.  People,  83  N.  Y.  464,  38  Am. 
Rep.  464;  People  v.  Johnson,  140  N.  Y.  350;  Alberti  v.  N.  Y.,  L.  E. 
d  W.  R.  Co.,  118  N.  Y.  77. 

Compelling  production  of  person  for  examination. —  The  court  may 
compel  the  production  of  a  person  before  the  jury.    Mulhado  v.  Brook- 
lyn, etc.,  R.  Co.,  30  N.  Y.  370. 
22 


338  A  DIGEST  OF  [Pabt  II. 

Evidence  unlawfully  obtained. —  Letters  and  papers  if  obtained  un- 
lawfully are  still  admissible  in  evidence.  Siebert  v.  People,  143  111. 
571. 

Production  of  objects  and  persons. —  Objects  may  be  produced  for 
the  inspection  of  the  jury.  Springer  v.  Chicago,  135  111.  552,  561 ; 
A.,  T.  d  S.  F.  R.  R.  Co.  v.  Schneider,  127  111.  144,  149;  Tudor  I.  W. 
v.  Weber,  129  111.  535;  Lanark  v.  Dougherty,  153  111.  163. 

By  statute,  generally,  the  jury  may,  by  order  of  court,  be  taken  to 
view  property  in  controversy.     Vane  v.  Evanston,  150  111.  616. 

An  injured  member  may  be  shown  to  the  jury.  Grand  Lodge  v. 
Randolph,  186  111.  89,  57  N.  E.  882,  affirming  84  111.  App.  220;  Swift 
v.  O'Neil,  58  N.  E.  416,  affirming  88  111.  App.  162;  Lanark  v.  Dough- 
erty, 153  111.  163;  Chicago  St.  Ry.  Co.  v.  Grenell,  90  111.  App.  30. 

In  injury  cases,  the  plaintiff  may  strip  in  the  presence  of  the  jury. 
C.  d  A.  R.  R.  Co.  v.  Clausen,  70  111.  App.  550. 

One  may  be  allowed  to  exhibit  to  the  jury  a  rupture,  in  the  dis- 
cretion of  the  court.  C.  d  A.  R.  R.  Co.  v.  Clausen,  173  111.  100,  50 
N.  E.  680,  affirming  70  111.  App.  550. 

An  eye  which  has  been  removed,  or  a  piece  of  bone,  may  be  ex- 
hibited to  the  jury.     Seltzer  v.  Saxton,  71  111.  App.  229. 

The  exhibition  of  an  injury  to  a  jury  is  within  the  discretion  of  the 
court.     C.  d  A.  R.  R.  Co.  v.  Clausen,  70  111.  App.  550. 

The  person  injured  may  show  the  jury  to  what  extent  he  can  move 
the  injured  arm.    Prichard  v.  Moore,  75  111.  App.  553. 

It  is  within  the  discretion  of  the  court  to  allow  the  portion  of  the 
body  injured  to  be  exhibited  to  the  jury.  Jefferson  Ice  Co.  v. 
Zwicokoski,  78  111.  App.  646. 

Child  in  bastardy. —  In  bastardy  proceedings,  the  child  cannot  be 
shown  in  evidence  to  show  resemblance  to  the  putative  father.  Rob- 
nett  v.  People,  16  111.  App.  300. 

Experiments. —  A  fact  which  illustrates  by  way  of  experiment  is 
admissible.  C.  d  N.  W.  R.  R.  Co.  v.  Hart,  22  111.  App.  207 ;  J.  d  E. 
Ry.  Co.  v.  Reese,  70  111.  App.  463. 

Chemical  experiments  to  determine  the  explosive  character  of  dust 
are  admissible,  but  should  be  admitted  with  caution.  Shufeldt  v. 
Bearing,  59  111.  App.  341. 

Chemical  experiments  conducted  under  the  same  conditions  are 
admissible.     Fein  v.  C.  M.  Benefit  Assn.,  60  111.  App.  274. 

Experiments  may  be  allowed  with  a  model  before  the  jury.  Penn- 
sylvania Coal  Co.  v.  Kelly,  156  111.  9. 


Chap.  VIII.]  THE   LAW   OF   EVIDENCE.  339 

Photographs. —  Photographs  may  be  admissible  evidence.  Miller 
v.  Louisville,  etc.,  R.  Co.,  128  Ind.  16,  25  Am.  St.  Rep.  416;  White 
Setting  Machine  Co.  v.  Gordon,  124  Ind.  495. 

A  photograph  of  a  person  or  thing  must  be  shown  by  the  testi- 
mony of  witnesses  to  have  been  taken  at  a  proper  time  to  reproduce 
a  correct  appearance  or  likeness.  White  Sewing  Machine  Co.  v.  Gor- 
don, 124  Ind.  495. 

Evidence  of  inspection  may  be  considered. —  An  injured  member 
may  be  exhibited  to  the  jury.  Indiana  Co.  v.  Parker,  100  Ind.  181; 
Louisville,  etc.,  Ry.  Co.  v.  Falvey,  104  Ind.  409,  422 ;  Louisville,  etc., 
Ry.  Co.  v.  Wood,  113  Ind.  544,  548;  Hess  v.  Lowrey,  122  Ind.  225, 
232. 

So  witness's  injuries  in  connection  with  his  testimony.  Brennan 
v.  Hutchinson,  15  Ind.  App.  639;  Citizens,  etc.,  R.  Co.  v.  Willoeby, 
134  Ind.  563. 

Objects  may  be  shown  to  the  jury.  Louisville,  etc.,  R.  Co.  v.  Wood, 
113  Ind.  544;  Taylor  v.  McGrath,  9  Ind.  App.  30;  Thrawley  v.  Statet 
153  Ind.  275    (skull). 

Inspection  of  documentary  evidence. —  In  order  to  compel  the  pro- 
duction of  writings  in  the  hands  of  a  party  an  order  is  required. 
Whitman  v.  Weller,  39  Ind.  515;  Duke  v.  Brown,  18  Ind.  111. 

The  propriety  of  making  such  an  order  depends  upon  the  aver- 
ments of  the  pleadings  and  issues  joined,  and,  unless  from  the  offered 
evidence  iiself  a  sufficient  reason  for  excluding  it  appears,  it  is  not 
error  to  admit  it  over  general  objections.  Wabash  Valley,  etc.  v. 
James,  8  Ind.  App.  449,  453.  Compare  Houser  v.  State  ex  rel.,  93 
Ind.  228,  229. 

The  other  papers  in  a  case  are  already  before  the  court,  but  may 
be  formally  introduced  in  evidence.  Bell  v.  Pavey,  7  Ind.  App.  19; 
Manor  v.  Board,  etc.,  137  Ind.  367. 

On  the  question  of  paternity  a  child  cannot  be  submitted  to  the 
jury  to  show  resemblance.     Reitz  v.  State,  33  Ind.  187. 

New  Jersey. 

Authorities. —  Witness  must  state  facts  not  inferences.  Berck- 
mans  v.  Berckmans,  16  N.  J.  Eq.  122. 

The  best  evidence  possible  must  be  produced.  Hoffman  v.  Rod- 
man, 39  N.  J.  L.  252. 

Direct  evidence  not  required  to  prove  adultery;  circumstantial 
evidence  will  be  sufficient  if  the  opportunity  and  the  will  to  commit 


340  A  DIGEST  OF  [Vast  II. 

the  crime  are  established.  Berckmans  v.  Berckmans,  16  N.  J.  Eq. 
122,  17  N.  J.  Eq.  453;  Day  v.  Day,  4  N.  J.  Eq.  444;  Adams  v. 
Adams,  17  X.  J.  Eq.  324. 

Photographs. —  Photographs  are  admissible  when  the  trial  judge 
has  been  satisfied  that  they  are  correct  representations.  Goldsboro 
v.  Central  R.  Co.,  60  N.  J.  L.  49. 

Examination  of  person. —  Physical  examination  of  a  plaintiff  in 
an  action  for  damages  allowed  under  statute.  McGovem  v.  Hope, 
63  N.  J.  L.  77. 

Jury  allowed  to  compare  putative  father  and  child  to  note  resem- 
blance.     Gaunt  v.   State,  50   N.   J.   L.   490. 

A  witness  or  a  party  may  be  required  to  stand  up  to  be  identified. 
Rice  v.  Rice,  47  N.  J.  Eq.  559. 

View. —  Inspection  of  chattels  or  premises  by  the  jury  or  by  wit- 
nesses.    G.   S.   1895,  "  Evidence."  24. 

Maryland. 

Authorities. —  Where  the  intention  of  a  party  is  material  he  may 
himself  testify  as  to  what  it  was.  Phelps  v.  Georges  Creek  Co.,  60 
Md.   536. 

In  testifying  as  to  a  conversation,  the  witness  must,  give  either 
the  language  or  its  substance ;  he  cannot  give  his  impression.  Elbia 
v.  Dean,  33  Md.  135. 

The  letter  of  a  party  excluded  because  the  writer  was  present 
and  could  testify  directly  as  to  the  matter  in  question.  Bland  v. 
Doivling,  9  G.  &  J.  19. 

A  witness  may  state  the  result  of  his  examination  of  numerous 
documents.     Blum  v.  State,  94  Md.   375. 

In  prosecution  for  rape  the  crime  cannot  be  proved  by  evidence 
of  declarations  of  the  prosecutrix  made  after  the  event.  Parker  v. 
State,  67  Md.  329. 

Photographs. —  Photographs  are  admissible  when  shown  to  be  cor- 
rect.    Dorsey  v.  Habersack,  84  Md.  117. 

A  sketch  or  painting  of  the  scene  of  an  accident  is  admissible. 
Commissioners  of  Harford  v.  Wise,  71  Md.  43. 

Exhibiting  objects  to  the  jury. —  Child  may  be  offered  as  an  ex- 
hibit to  prove  resemblance  to  its  putative  father.  Jones  v.  Jones, 
45  Md.  144. 

To  prove  that  defendant  injured  certain  rails  and  shingles,  the 
plaintiff   cannot   introduce   some   of   the   rails   and   shingles,   but   is 


Chap.  VIII.]  THE   LAW   OF  EVIDENCE.  341 

restricted  to  testimony  of  witnesses  who  have  made  examination. 
Jacobs  v.  Davis,  34  Md.  204. 

During  the  trial  parties  may  submit  documents  themselves  for 
the  inspection  of  the  jury,  but  not  afterward.  Moore  v.  McDonald, 
68  Md.  321. 

View  by  the  jury. —  With  the  consent  of  both  parties,  the  jury 
may  be  taken  to  view  the  scene  of  an  accident.  Arnold  v.  Green, 
95  Md.  217. 

Pennsylvania. 

Authorities. —  A  witness  may  not  testify  as  to  what  he  would 
have  done  under  other  circumstances,  kiican  v.  Scott,  11  fc>.  &  K. 
155. 

A  witness  cannot  testify  as  to  a  conclusion  which  it  is  the 
province  of  the  jury  to  draw.  Belter  v.  McJunkin,  l'J4  Pa.  301; 
Smith  v.  (John,  170  Pa.   132. 

A  witness  may  not  testify  as  to  inferences  he  drew  from  certain- 
facts.     Given  v.  Albert,  5  W.  &  S.  333. 

A  witness  may  give  the  impression  if  gained  from  facts  person- 
ally perceived.     Devall's  Exr.  v.  Darby,  38  Pa.  56. 

A  belief  not  founded  on  knowledge  is  no  evidence.  Carmalt  v. 
Post,  8  Watts,  406. 

Evidence  obtained  by  the  prosecutor's  having  body  of  deceased 
exhumed  is  admissible  to  prove  murder.  Com.  v.  Grether,  204  Pa. 
203. 

Any  one  who  saw  the  fact  may  testify,  though  one  not  called  might 
be  a  better  witness  than  the  one  testifying.  Richardson  v.  Milburn, 
17  Md.  67. 

The  oral  testimony  of  one  witness  is  admissible,  though  the  testi- 
mony of  others  not  called  might  be  stronger.  Western  Union  Co.  v. 
Stevenson,  128  Pa.  442;   Canfield  v.  Johnson,  144  Pa.  61. 

Undue  influence  may  be  shown  by  any  lawful  evidence,  direct  or 
indirect.     Robinson  v.  Robinson,  203  Pa.  400. 

Witness  testifying  in  a  foreign  language.  Com.  v.  Greason,  204 
Pa.   64. 

Photographs. —  Photographs  are  admissible  after  preliminary 
proof  of  care  and  accuracy  in  taking  them.  Beardslee  v.  Columbia 
Twp.,   188  Pa.  496. 

Photograph  admissible  on  question  of  size.  Com.  v.  Keller,  191 
Pa.  122. 


342  A  DIGEST  OF  [Pabt  II. 

Photographs  and  portraits  are  admissible  to  prove  identity. 
Udderzook  v.  Com.,  76  Pa.  340;  Com.  v.  Connors,  156  Pa.  147; 
Bryant's  Estate,    170   Pa.   309. 

Demonstrative  evidence.-*- Jury  may  infer  minority  from  looking 
at  the  person.     Snodgrass  v.  Bradley,  2  Grant,  43. 

A  specimen  of  paving  stone  is  admissible  to  show  quality. 
Philadelphia  v.  Rule,  93  Pa.  15. 

Defendant  cannot  be  compelled  to  make  a  foot  print  for  com- 
parison.    Stokes  v.  State,  8  Leg.  Gaz.  100. 

To  prove  malpractice,  an  injured  limb  was  exhibited  to  the  jury. 
Fowler  v.  Sergeant,  1  Grant,  355. 

A  plat  made  by  an  engineer  from  his  notes  of  survey  is  admis- 
sible.    Bassett  v.  Pcnna.  Co.,  201  Pa.  226. 


Chap.  IX.]  THE    LAW   OF   EVIDENCE.  343 


CHAPTER  IX. 

OF  DOCUMENTARY  EVIDENCE— PRIMARY  AND  SECONDARY, 
AND  ATTESTED  DOCUMENTS. 


Akticle  63. 

proof  of  contents  of  documents. 

The  contents  of  documents  may  be  proved  either  by  pri- 
mary or  by  secondary  evidence. 

AMERICAN  NOTE. 
General. 

Where  the  production  of  primary  evidence  is  in  the  power  of  a 
party,  secondary  evidence  cannot  be  given.  New  York  Car  Oil  Co.  v. 
Richmond,  6  Bosw.  213,  19  How.  Pr.  505.  Even  in  reduction  of  dam- 
ages. Coleman  v.  Southivick,  9  Johns.  45;  Hasbrouck  v.  Baker,  10 
Johns.  248.  And  see  Dygert  v.  Coppernoll,  13  Johns.  210;  Brewster 
V.  Countryman,  12  Wend.  446. 

Where  part  of  a  document  is  offered,  the  other  side  can  call  for 
the  remainder  of  it  if  it  relates  to  the  same  subject-matter.  Imperial 
Hotel  Co.  v.  H.  B.  Claflin  Co.,  55  111.  App.  338. 

The  objection  to  the  admission  of  a  writing  in  evidence  must  be 
made  at  the  trial.     Lake  v.  Broicn,  116  111.  83,  87. 

Article  64. 

primary  evidence. 

Primary  evidence  means  the  document  itself  produced 
for  the  inspection  of  the  Court,  accompanied  by  the  pro- 
duction of  an  attesting  witness  in  cases  in  which  an  attesting 


344  A  DIGEST  OF  [Part  II. 

witness  must  be  called  under  the  provisions  of  Articles  66 
and  67 ;  or  an  admission  of  its  contents  proved  to  have 
been  made  by  a  person  whose  admissions  are  relevant  under 
Articles  15-20.1 

Where  a  document  is  executed  in  several  parts,  each  part 
is  primary  evidence  of  the  document : 

Where  a  document  is  executed  in  counterpart,  each 
counterpart  being  executed  by  one  or  some  of  the  parties 
only,  each  counterpart  is  primary  evidence  as  against  the 
parties  executing  it.2 

Where  a  number  of  documents  are  all  made  by  printing, 
lithography,  or  photography,  or  any  other  process  of  such  a 
nature  as  in  itself  to  secure  uniformity  in  the  copies,  each  is 
primary  evidence  of  the  contents  of  the  rest;3  but  where 
they  are  all  copies  of  a  common  original,  no  one  of  them  is 
primary  evidence  of  the  contents  of  the  original.4 

AMERICAN   NOTE. 
General. 

Authorities. —  Wharton  on  Evidence,  sees.  92,  1091,  1092;  I 
Greenleaf  on  Evidence    (15th  ed.),  sees.  96,  203. 

First  paragraph  of  text.  Morey  v.  Hoyt,  62  Conn.  542,  556,  557, 
26  Atl.  127  (quoting  this  article  with  approval)  ;  Edgerton  v.  Edger- 
ton,  8  Conn.  6;  Davis  v.  Eingsley,  13  Conn.  285. 

The  recorded  vote  of  the  directors  of  a  corporation  is  the  only 

i  Slatterie  v.  Pooley,  1840,  6  M.  &  W.  664. 

2  Ree  d.  West  v.  Davis,  1806,  7  Ea.  362. 

B.R.  v.  Watson,  1817,  2  Star.  129.  This  case  was  decided  long  be- 
fore the  invention  of  photography;  but  the  judgments  delivered  by 
the  Court  (Ellenborough,  C.  J.,  and  Abbott.  Bayley,  and  Holroyd„ 
JJ. )   establish  the  principle  stated  in  the  text. 

4  Xodin  v.  Murray,  1812,  3  Camp.  227. 


Chap.  IX.]  THE   LAW    OF   EVIDENCE.  345 

proper  evidence  of  their  acts.  If  it  has  been  lost,  secondary  evi- 
dence may  be   introduced.     Eurd   v.   Hotchkiss,    72   Conn.    480. 

An  executed  contract,  signed  by  one  party  only,  is  admissible  in 
evidence  against  the  party  not  signing  in  a  suit  by  a  stranger. 
Watson  v.  New  Milford,  72   Conn.   566. 

A  paper  purporting  to  be  signed  by  a  party  is  not  admissible 
against  him  without  some  proof  of  the  genuineness  of  the  signa- 
ture. Neil  v.  Miller,  2  Root  (Conn.),  117;  Canfield  v.  Squire,  2  Root 
(Conn.),  300. 

Admissions. —  The  contents  of  an  instrument  may  be  proved  by 
admissions.  Blackington  v.  Rockland,  66  Me.  332 ;  Loomis  v.  Wad- 
hams,  8  Gray  (Mass.),  557;  Smith  v.  Palmer,  6  Cush.  (Mass.)  513; 
Crichton  v.  Smith,  34  Md.  42,  47 ;  Edger  v.  Richardson,  33  0.  St.  581 ; 
Taylor  v.  Peck,  21  Gratt.  11 ;  Edivards  v.  Tracy,  62  Pa.  St.  374;  Hoef- 
ling  v.  Eambleton,  84  Tex.  517.  Contra,  Cumberland  Ins.  Co.  v.  Cil- 
tinan,  48  N.  J.  L.  495. 

Telegrams. —  The  message  received  has  been  held  primary  evidence 
of  that  sent.  Nickerson  v.  Spindell,  164  Mass.  28;  Durkee  v.  Vt. 
R.  Co.,  29  Vt.  127;  Eowley  v.  Whipple,  48  N.  H.  487;  Ayer  v.  Tel. 
Co.,  79  Me.  493,  500;  Saveland  v.  Qreen,  40  Wis.  431 ;  Anheuser-Busch 
Assn.  v.  Eutmacher,  127  111.  652 ;  Magie  v.  Herman,  50  Minn.  424. 

Meaning  of  primary  evidence. —  Sustaining  the  text.  McCormick 
v.  Mulvihill,  1  Hilt.  131;  Baird  v.  Baird,  81  Hun,  300;  affirmed  in 
145  N.  Y.  659;  Mengis  v.  Fifth  Avenue  By.  Co.,  81  Hun,  480,  63  N. 
Y.  St.  R.  192;   Collins  v.  Shaffer,  78  Hun,  512,  61  N.  Y.  St.  R.  222. 

Where  the  by-laws  of  the  defendant  were  identified  by  an  original 
corporator  and  trustee,  and  were  signed  by  all  of  the  incorporators 
hut  two,  which  signatures  were  proved,  and  purported  to  be  the  de- 
fendant's by-laws,  this  evidence  of  authenticity  was  deemed  sufficient 
proof  thereof.  Church  of  St.  Stanislaus  v.  Verein,  58  N.  E.  1086,  164 
N.  Y.  606. 

Where  in  an  action  for  libel  a  previous  publication  by  the  plain- 
tiff was  offered  as  evidence,  but  an  objection  was  taken  to  it,  the 
judge  may  require  that  it  be  first  submitted  to  him  for  his  perusal, 
before  allowing  it  to  be  read  in  the  hearing  of  the  jury.  Oould  v. 
Weed,  12  Wend.  12. 

The  adverse  party  cannot  compel  a  party  reading  a  portion  of  a 
statement  or  correspondence  to  read  all  of  it;  if  it  is  material  and 
he  desires  it,  the  adverse  party  can  himself  read  it.  Parmenter  v. 
Boston,  Hoosac  Tunnel  B.  B.  Co.,  37  Hun,  354. 


34G  A  DIGEST  OF  [Pabt  II. 

Document  in  several  parts. —  Each  duplicate  original  is  primary 
evidence.  Lewis  v.  Payn,  8  Cow.  71;  Hubbard  v.  Russell,  24  Barb. 
404;  Martin  v.  Martin,  1  Misc.  Rep.  181,  48  N.  Y.  St.  R.  689.  See 
Grossman  v.  Grossman,  95  X.  Y.  145. 

Document   in  counterpart. —  Nicoll  v.    Burke,  8    Abb.  X.  C.  213. 

Instruments  are  not  now  usually  executed  in  counterpart.  Roland 
v.  Pinckney,  8  Misc.  Hep.  458. 

Documents  printed,  lithographed,  photographed,  etc.,  uniformly. — 
Buff  v.  Bennett,  4  Sandf.  120. 

Copies  of  a  common  original. —  Letter-press  copies  of  correspond- 
ence are  secondary  evidence  only.  Foot  v.  Bently,  44  N.  Y.  166,  4 
Am.  Rep.  052. 

Counterpart. —  Weaver  v.  Shipley,  127  Ind.  526,  535   (lease). 

New  Jersey. 

Authorities. —  The  original  document  is  admissible  even  though 
certified  copies  are  also  admissible.     Oram  v.   Young,  3  Harr.  57. 

A  judgment  must  be  proved  by  the  original  entry.  Brookfield  v. 
Winans,  7  Hal.  338. 

When  documents  that  are  admissible  are  produced  and  referred 
to  by  witnesses  they  may  become  evidence  without  any  formal  offer. 
Convery  v.  Conger,  53  N.  J.  L.  658 ;  reversing  8.  C.,  53  N.  J.  L.  468. 

The  record  of  an  instrument  is  primary  evidence  only  when  made 
such  by  statute.     Fox  v.  Lambson,  3  Hal.  275. 

Admissions  of  a  party  are  not  admissible  to  prove  contents  of  a 
document  except  when  secondary  evidence  is  admissible.  Cumber- 
land Ins.  Co.  v.  Giltinan,  48  N.  J.  L.  495. 

Maryland. 

Authorities. —  An  original  telegram  is  the  one  sent  to  be  trans- 
mitted, not  the  one  received.     Smith  v.  Easton,  54  Md.   138. 

An  original  deed  is  not  admissible  without  proof  of  its  execution. 
Gambrill  v.  Schooley,  95  Md.  260. 

Duplicates. —  When  a  contract  has  been  executed  in  duplicate, 
each  copy  is  primary  evidence.     Totten  v.  Bucy.  57  Md.  446. 

Admissions. —  The  contents  of  an  instrument  may  be  proved  by 
admissions.     Crichton  v.  Smith,  34  Md.  42,  47. 

Pennsylvania. 

Authorities. —  A  record  of  a  court  is  primary  evidence.  Eisenhart 
v.  Slaymalcer,  14  S.  &  R.  153;  Garrigues  v.  Harris,  17  Pa.  344. 


Chap.  IX.]  THE   LAW    OF   EVIDENCE.  347 

The  record  of  a  judgment  is  admissible  to  prove  a  fact  stated  in 
the  declaration.     Numbers  v.  Shelly,  78  Pa.  42G. 

Docket  entries  are  not  admissible  to  prove  issuance,  service,  and 
return  of  a  writ.  The  writ  itself  is  the  primary  evidence.  Vincent 
v.  Huff,  4  S.  &  R.  298. 

Irish  statutes  proved  by  a  printed  copy.  Jones  V.  Maffet,  5  S.  & 
R.  523. 

The  statute-book  is  evidence  of  private  and  public  laws.  Biddis 
v.  James,  6  Binn.  321;   Gray  v.  Navigation  Co.,  2  W.  &  S.  156. 

Unstamped  check  allowed  in  evidence  when  not  offered  to  sustain 
the  plaintiff's  claim  or  the  defendant's  defense.  Bryan  v.  Bank, 
205  Pa.  7. 

Ownership  of  personal  property  may  be  proved  by  parol,  though 
the  sale  is  evidenced  by  a  writing.  Gallagher  v.  Assurance  Corp., 
149  Pa.  25. 

Counterparts. —  A  duplicate  original  is  primary  evidence.  Cobb 
v.  Burns,  61  Pa.  278. 

A  copy  of  a  lost  deed  is  not  admissible  if  there  be  a  counterpart 
in  existence.     Kern  v.  Swope,  2  Watts,  75. 

Admissions. —  The  contents  of  an  instrument  may  be  proved  by 
admissions.     Edwards  v.  Tracy,  62  Pa.  374. 

Statute. —  Courts  may  compel  the  production  of  books  and  papers. 
Pepper  &  Lewis'  Digest  of  Laws,  "  Evidence,"  sec.  6. 

Article  65. 
proof  of  documents  by  primary  evidence. 

The  contents  of  documents  must,  except  in  the  cases 
mentioned  in  Article  71,  be  proved  by  primary  evidence: 
and  in  the  cases  mentioned  in  Article  60  by  calling  an  attest- 
ing witness. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  82  et  seq.; 
MeKelvey  on  Evidence,  p.  342  et  seq.;  Kelsey  v.  Hanmer,  18  Conn. 
317;  Waller  v.  Eleventh  Sch.  Dist.,  22  Conn.  333;  Elwell  v.  Mersick, 
50  Conn.  276;   Richards  v.  Stewart,  2  Day    (Conn.),   328;   Hurd  v. 


34 S  A  DIGEST  OF  [Part  II. 

Hotchkiss,  72  Conn.  480;  Topping  v.  Bickford,  4  Allen  (Mass.),  120; 
Binney  v.  Russell,  109  Mass.  55 ;  Amherst  Bank  v.  Conlcey,  4  Mete. 
(Mass.)  459;  Woods  v.  Burke,  67  Mich.  C74;  Martin  v.  McCray,  171 
Pa.  St.  575.     See,  however,  Huston  v.  Ticknor,  99  Pa.  St.  231. 

Where  an  instrument,  having  no  subscribing  witnesses,  comes  from 
the  proper  custody,  proof  of  the  handwriting  of  the  party  is  suffi- 
cient; the  presumption  then  is  that  it  was  executed  at  the  time  of 
its  date.  St.  John  v.  American  Mutual  Life  Insurance  Co.,  2  Duer, 
419. 

Proof  of  deeds,  leases,  etc. — Johnston  v.  Granger,  17  Misc.  Rep. 
54,  39  X.  Y.  Supp.  848 ;  Broxcn  v.  Sullivan,  1  Misc.  Rep.  161,  48  N.  Y. 
St.  R.  685;  Drummond  v.  Fisher,  43  X.  Y.  St.  R.  135,  17  X.  Y.  Supp. 
867. 

Proof  of  insurance  policies,  etc. —  Read  v.  Metropolitan  Life  Ins. 
Co.,  17  Misc.  Rep.  307,  40  X.  Y.  Supp.  374;  Porter  v.  Valentine,  18 
Misc.  Rep.  213,  41  X.  Y.  Supp.  507. 

Written  laws.—  The  written  laws  of  other  countries  can  be  proved 
only  by  written  evidence,  but  their  interpretation  may  be  shown  by 
expert  evidence.    Bierhous  v.  Western  Union  Tel.  Co.,  8  Ind.  App.  246. 

As  to  city  records,  see  Burns'  Stat.,  sec.  3503. 

The  written  laws  of  other  States  cannot  be  proved  by  oral  evidence. 
Comparlt  v.  Jemegan,  5  Blackf.  375 ;  Line  v.  Mack,  14  Ind.  330. 

Books  of  account. —  When  original  books  of  account  are  accessible, 
parol  proof  of  the  contents  is  inadmissible.  Kane  v.  State,  71  Ind. 
559. 

Evidence  before  coroner. —  Evidence  before  a  coroner  reduced  to 
writing  cannot  be  proved  by  oral  evidence.  Robinson  v.  State,  87 
Ind.  292. 

Records. —  The  contents  of  court  and  other  public  records  must  be 
shown  by  the  records  themselves.  Bible  v.  Voris,  141  Ind.  569; 
Hamilton  v.  Shoaff,  99  Ind.  63,  66;  Williams  v.  Jones,  12  Ind.  561; 
Met-cr  v.  State,  39  Ind.  596;  Bible  v.  Boris,  141  Ind.  569;  Doe  dem. 
Sutton  v.  Reagan,  5  Blackf.  217;  Mills  v.  Barnes,  4  Blackf.  438  (of 
justice)  ;  Beatty  v.  Gates,  4  Ind.  154  (to  prove  judgment)  ;  Piersoll 
v.  Craig,  22  Ind.  394  (same)  ;  Cline  v.  Gibson,  23  Ind.  11. 

By  the  statute  (Rev.  Stat.,  1843,  518)  the  sale  bill  is  the  best 
evidence  of  an  administrator's  sale.     Meek  v.  Spencer,  8  Ind.  118. 

The  proceedings  of  courts  of  other  States  are  to  be  proved  by  their 
records.    Hamilton  v.  Shoaff,  99  Ind.  63;  Teter  v.  Teter,  88  Ind.  494. 


Chap.  IX.]  THE    LAW    OF   EVIDENCE.  349 

Copies  of  the  records  of  Federal  courts  in  Indiana  may  be  authenti- 
cated by  the  keeper  of  such  records.    Bradford  v.  Russell,  79  Ind.  64. 

The  record  is  the  best  evidence  of  admissions  by  pleading  in  a 
prior  action.     Colborn  v.  Fry,  23  Ind.  App.  485. 

Disagreement  between  original  and  copy.- —  Where  the  transcript 
of  a  judgment  and  the  judgment  itself  do  not  agree,  the  judgment 
itself  being  the  primary  evidence  controls.  Robinso7i  v.  Snyder,  97 
Ind.  56,  59;  St  rat  ton  v.  Lockhart,  1  Ind.  App.  380,  384. 

Award. — Burke  v.  Voyles,  5  Blackf.  190;  Williams  v.  Dewitt,  12 
Ind.  309. 

Under  section  454,  Rev.  Stat.,  1894,  instruments  recording  a  sale 
cannot  be  introduced  in  evidence  unless  sealed.  Conkey  v.  Conder, 
134  Ind.  441. 

Harmless  error. —  If  the  original  is  also  in  evidence  the  admission 
of  a  copy  also  is  a  harmless  error.    Burk  v.  Andis,  98  Ind.  59,  65. 

Original  must  be  in  writing. —  Morrison  v.  King,  4  Blackf.  125.. 

Dedication  of  a  street  may  be  shown  by  parol.  Wood  v.  Mansell,  3 
Blackf.  125. 

Parol  evidence  is  admissible  to  prove  a  verdict  was  rendered  in  a 
suit.     Abrams  v.  Smith,  8  Blackf.  95. 

Railroad  rules  may  be  proved  by  parol  where  it  does  not  appear 
that  they  are  in  writing.  Pittsburgh,  etc.,  R.  R.  Co.  v.  Martin,  157 
Ind.  216,  61  X.  E.  229. 

The  common  law  of  another  State  and  the  customs  prevailing  there 
may  be  proved  by  oral  evidence.    Heberd  v.  Myers,  5  Ind.  94. 

New  Jersey. 

Authorities. —  Parol  evidence  of  the  contents  of  a  writing  not 
admissible.     Sterling  v.  Potts,  5  X.  J.  L.  773. 

A  judgment  can  be  proved  only  by  the  judgment  itself.  Brook- 
field  v.  Winans,  7  Hal.  338. 

Resolution  of  a  city  council  cannot  be  proved  by  parol.  State  V. 
McQrath,  44  X.  J.  L.  227. 

Contents  of  a  document  cannot  be  proved  even  by  admissions  of 
the  defendant  who  executed  it.  while  its  absence  is  unaccounted  for. 
Fire  Ins.  Co.  v.  Oiltinan,  4S  X.  J.  L.  495. 

The  only  competent  evidence  of  an  assessment  is  the  assessment 
itself.     Hopper  v.   Malleson,   16  X.   J.  Eq.  382. 


350  THE  LAW  OF  EVIDENCE.  [Chap.  IX. 

Maryland. 

Authorities. —  Parol  evidence  of  the  contents  of  a  writing  not 
admissible.  Mullilcen  v.  Boyce,  1  Gill,  00;  Marshall  v.  Haney,  $ 
Gill,  251  j  Dunuock  v.  Dunnock}  3  Md.  Ch.  140;  Morrison  v.  Welti/, 
18  Md.  169. 

By  agreement,  short  abstracts  of  foreign  records  are  receivable. 
Bowman  v.  Franklin  his.  Co.,  40  Md.  620. 

The  fact  that  an  executor's  powers  have  been  revoked  can  be 
proved  only  by  the  court  record.     Wright  v.  Gilbert,  51  Md.  146. 

A  grant  of  letters  testamentary  may  be  proved  by  parol  evidence 
in  case  it  was  the  practice  of  the  Orphans'  Court  to  make  no  record. 
Avon  Coal  Co.  v.  McCulloh,  59  Md.  403. 

If  secondary  evidence  is  introduced  without  objection  it  is  as 
effectual  as  primary.     Marfield  v.  Davidson,  8  G.  &  J.  209. 

Sealed  instruments.     Clarke  v.  State,  8  G.  &  J.  111. 

Pennsylvania. 

Authorities. —  Martin  v.  McCray,  171  Pa.  575;  Huston  v.  Tickno", 
99  Pa.  231. 

Certificate  of  an  architect  that  plumbing  work  was  according  to 
contract  must  be  proved  by  the  document  itself.  Brown  v.  Burr, 
160  Pa.  458. 

An  order  of  court  granting  a  new  trial  can  be  proved  only  by  the 
record.     Wentz  v.  Lowe,  3  Atl.  878. 

A  discharge  in  insolvency  can  be  proved  only  by  the  record. 
Loughry  v.  McCullough,  1  Pa.  503. 

An  execution  can  be  proved  only  by  the  record.  Snyder  v.  Snyder, 
6  Binn.  483.     And  see  Bank  v.  Fordyce,  1  Pa.  454. 

The  terms  of  a  written  contract  cannot  be  proved  by  parol.  Bar- 
nett  v.  Barnett,  16  S.  &  R.  51. 

Parol  evidence  of  the  contents  of  a  writing  not  admissible. 
Campbell  v.  Wallace.  3  Yeates,  271;  Brown  v.  Day,  78  Pa.  129. 

Contents  of  books  of  account  cannot  be  proved  by  parol.  Ren- 
show  v.  Proctor.  16  Wkly.  Notes  Cas.  495. 

The  assessment  of  property  for  taxes  must  be  proved  by  the  assess- 
ment itself.     Stark  v.  Shupp.  112  Pa.  395. 

The  appointment  of  the  guardian  of  a  minor  may  be  proved  with- 
out producing  the  record  of  the  Orphans'  Court.  Appeal  of  Fink, 
101  Pa.  74. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  361 

Printed  copies  of  statutes. —  The  contents  of  statutes  of  Pennsyl- 
vania may  be  proved  by  copies  printed  by  authority.  Biddis  v. 
James,  6  Binn.  321;  Gray  v.  Navigation  Co.,  2  W.  &  S.  15G.  So 
also  may  the  statutes  of  other  States  be  proved.  Thompson  v. 
Musser,  1  Dall.  458 ;  Mullen  v.  Morris,  2  Pa.  85 ;  Tenant  v.  Tenant, 
110  Pa.  478. 

Deeds. —  Copy  of  a  deed  not  admissible.  Lodge  v.  Berrier,  16 
S.  &  R.  296;  Rank  v.  Shewey,  4  Watts,  218. 

Article  66.* 

proof  of  execution  of  document  required  by  law 
to  be  attested. 

If  a  document  is  required  by  law  to  be  attested,  it  may 
not  be  used  as  evidence  (except  in  the  cases  mentioned  or 
referred  to  in  the  next  article)  if  there  be  an  attesting 
witness  alive,  sane,  and  subject  to  the  process  of  the  Court, 
until  one  attesting  witness  at  least  has  been  called  for  the 
purpose  of  proving  its  execution. 

If  it  be  shown  that  no  such  attesting  witness  is  alive  or 
can  be  found,  it  must  be  proved  that  the  attestation  of  one 
attesting  witness  at  least  is  in  his  handwriting,  and  that  the 
signature  of  the  person  executing  the  document  is  in  the 
handwriting  of  that  person. 

The  rule  extends  to  cases  in  which — 

the  document  has  been  burnt5  or  cancelled  ;6 

the  subscribing  witness  is  blind  ;7 

*  See  Note  XXVIII. 
0  Gillies  v.  Smither,  1819,  2  Star.  R.  528. 
e  Breton  v.  Cope,  1791,  Pea.  R.  43. 
t  Cronk  v.  Frith,  1839,  9  C.  &  P.  197. 


352  A  DIGEST  OF  [Pabt  II. 

the  person  by  whom  the  document  was  executed  is  pre- 
pared to  testify  to  his  own  execution  of  it  ;8 

the  person  seeking  to  prove  the  document  is  prepared  to 
prove  an  admission  of  its  execution  by  the  person  who 
executed  it,  even  if  he  is  a  party  to  the  cause,9  unless  such 
admission  be  made  for  the  purpose  of,  or  has  reference  to, 
the  cause. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  569  et  seq.; 
McKelvey  on  Evidence,  p.  351  et  seq.;  3  Taylor  on  Evidence 
(American  edition  of  1897),  p.  1229  et  seq. 

First  paragraph  of  text.  Foye  v.  Leighton,  24  N.  H.  29;  Wood- 
man v.  Segar,  25  Me.  90;  Harding  v.  Cragie,  8  Vt.  501;  Whitte- 
more  v.  Brooks,  1  Me.  57;  Gage  v.  Wilson,  17  Me.  378;  International, 
etc.,  R.  Co.  v.  McRae,  82  Tex.  614;  Brigham  v.  Palmer,  3  Allen  (Mass.), 
450;  Barry  v.  Ryan,  4  Gray  (Mass.),  523. 

The  rules  of  this  article  are  not  abrogated  by  statutes  making 
parties  competent  witnesses.  Brigham  v.  Palmer,  3  Allen  (Mass.), 
450. 

Other  competent  evidence  is  admissible  if  all  the  attesting  wit- 
nesses are  dead,  incompetent,  or  beyond  the  reach  of  process. 
Homer  v.  Wallis,  11  Mass.  309;  Valentine  v.  Piper,  22  Pick.  (Mass.) 
85;  Haynes  v.  Rutter,  24  Pick.   (Mass.)   242;  Amherst  Bank  v.  Root, 

2  Mete.   (Mass.)   522;  Packard  v.  Dunsmore,  11  Cush.   (Mass.)   282; 
Tyng  v.  B.  rf  M.  R.  R.  Co.,  12  Cush.  (Mass.)  277;  Brigham  v.  Palmer, 

3  Allen   (Mass.),  450. 

So  if  the  attesting  witness  fail  to  prove  the  document.  Whitaker 
v.  Salisbury,  15  Pick.  (Mass.)  534.  See,  also,  Russell  v.  Coffin,  8 
Pick.  (Mass.)   143;  Robinson  v.  Brennan,  115  Mass.  582. 

In  a  suit  for  fraud,  in  giving  an  invalid  deed,  the  document  may 
be  proved  without  calling  the  attesting  witnesses.  Skinner  v. 
Brigham,  126  Mass.   132. 

8  R.  v.  Harringworth,  1815,  4  M.  &  S.  at  p.  353. 

9  Call  v.  Dunning,  1803,  4  Ea.  53.  See,  too,  Whyman  v.  Garth, 
1853,  8  Ex.  S03:  Randall  v.  Lynch,  1810,  2  Camp.  357. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  353 

Witness  not  found. —  If  no  competent  attesting  witness  can  be 
found,  signatures  may  be  proved.     Woodman  v.  Segar,  25  Me.  90. 

Absence  of  witness. —  Whether  the  absence  from  the  State  of  the 
attesting  witnesses  of  a  bond  is  sufficient  to  admit  proof  of  their 
handwriting,  qucere.    Hempstead  v.  Bird,  2  Day  (Conn.),  293. 

The  signature  of  an  attesting  witness,  who  is  absent  from  the  State, 
may  be  proved  in  the  same  way  as  though  dead.  Trustees  of  Charities 
v.  Connolly,  157  Mass.  272;  Hanrick  v.  Patrick,  119  U.  S.  156;  Galla- 
gher v.  London  Assur.  Corp.,  149  Pa.  St.  25;  Ballinger  v.  Davis,  29 
la.  512;  N.  J.  Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  N.  J.  L.  ,189. 

In  some  States  it  is  enough  to  prove  the  handwriting  of  the 
party  alone.  Jones  v.  Roberts,  65  Me.  273;  Cox  v.  Davis,  17  Ala. 
714;  Landers  v.  Bolton,  26  Cal.  393;  Snider  v.  Burks,  84  Ala.  53, 
66  ( either  or  both ) .  Or  of  one  witness.  McKelvey  on  Evidence,  p. 
353;  Stebbins  v.  Duncan,  108  U.  S.  32. 

One  witness  enough. —  White  v.  Wood,  8  Cush.  (Mass.)  413;  Gelott 
v.  Goodspeed,  8  Cush.  (Mass.)  411;  Melcher  v.  Flanders,  40  N.  H. 
139. 

The  testimony  to  the  execution  of  a  deed  of  one  of  two  subscrib- 
ing witnesses  makes  prima  facie  proof  of  its  execution.  0' Sullivan 
v.  Overton,  56  Conn.   105,   106. 

The  court,  in  its  discretion,  may  call  for  the  testimony  of  all  the 
attesting  witnesses.  Burke  v.  Miller,  7  Cush.  (Mass.)  547.  See,  also, 
Clark  v.  Houghton,  12  Gray  (Mass.),  38. 

Admissions. —  Last  paragraph  of  text.  Kenney  v.  Flynn,  2  R.  I. 
319;  Blake  v.  Savcin,  10  Allen  (Mass.),  340;  Jones  v.  Henry,  84  N.  C. 
320 ;  Warner  v.  B.  d  0.  R.  R.  Co.,  31  O.  St.  265 ;  Richmond,  etc.,  R. 
Co.  v.  Jones,  92  Ala.  218.  Compare  Eingtcood  v.  Bethlehem,  13 
N.  J.  L.  221  :  Frost  v.  Deering,  21  Me.  56. 

Lost  document. —  If  a  document  is  lost,  the  rule  is  the  same  as 
that  stated  in  the  text  with  reference  to  burnt  documents.  Kimball 
v.  Morrell,  4  Me.  368;  Wells  v.  Jackson  Iron  Co.,  48  N.  H.  491 ;  Por- 
ter v.  Wilson,  13  Pa.  St.  641;  Kelsey  v.  Hanmer,  18  Conn.  311. 

Party  prepared  to  testify  to  execution. —  Sustaining  text.  Barry 
v.  Ryan,  4  Gray  (Mass.),  523;  Flitcher  v.  Perry,  97  Ga.  368;  Hess  v. 
Griggs,  43  Mich.  397  :  Russell  v.  Walker,  73  Ala.  315.  Contra,  Bowl- 
ing v.  Hax,  55  Mo.  446 ;  Garrett  v.  Haushue,  53  0.  St.  482. 

The  disqualification,  by  his  own  act,  of  a  subscribing  witness  to  a 
note  will  prevent  him  from  establishing  its  execution.     Edward*  v. 
Perry,  21  Barb.  600. 
23 


354  A  DIGEST  OF  [Pabt  II. 

An  erasure  in  a  deed  need  not  be  proved  by  the  attesting  witness. 
Penny  v.  Corwithe,  18  Johns.  499. 

First  paragraph  of  text. —  Henry  v.  Bishop,  2  Wend.  575 ;  Bond  v. 
Root,  18  Johns.  60;  King  v.  Smith,  21  Barb.  158. 

Witness  dead  or  insane. — The  signature  of  a  witness  who  is  dead 
or  insane  can  be  established  as  his  by  proof  of  his  handwriting. 
McKay  v.  Lasher,  121  N.  Y.  477;  Mott  v.  Doughty,  1  Johns.  Cas. 
230;  Woodruff  v.  Cody,  9  Cow.  140;  Van  Rensselaer  v.  Jones,  2  Barb. 
643.    See,  also,  Fox  v.  Reil,  3  John.  447. 

Attested  instruments. —  The  evidence  of  an  attesting  witness  is 
not  the  only  admissible  evidence  of  execution.  It  is,  however,  the 
best  evidence.     Pence  v.  Makepeace,  65  Ind.  345. 

As  to  attesting  witnesses,  see  Helms  v.  Kearns,  40  Ind.  124;  Booker 
v.  Bowles,  2  Blackf.  90;  Jones  v.  Cooprider,  1  Blackf.  47. 

Papers  executed  by  illiterate  persons  need  not  on  that  account  be 
attested.     Shank  v.  Butsch,  28  Ind.  19. 

New  Jersey. 

Authorities. —  Williams  v.  Davis,  2  Pen.  259;  Corlies  v.  Van  'Note, 
16  N.  J.  L.  324. 

Proof  of  signature  of  attesting  witness  establishes  prima  facie 
the  due  execution,  but  it  is  customary  to  prove  the  signature  of  the 
party  to  the  instrument  also.     Servis  v.  Nelson,  14  N.  J.  Eq.  94. 

The  absence  of  the  attesting  witness  must  be  accounted  for  before 
other  proof  can  be  made.  Williams  v.  Davis,  Pen.  277 ;  Corlies  v. 
Van  Note,  1  Harr.  324;  Anonymous,  1  Harr.  355. 

Deed  must  be  proved  by  the  attesting  witness.  Williamson  v. 
Wright,  Pen.  984. 

Absent  witness. —  Handwriting  may  be  proved  if  the  witness  is 
beyond  the  reach  of  process.  Lorrillard  v.  Van  Houten,  10  N.  J.  L. 
270;   Van  Doren  v.  Van  Doren,  3  N.  J.  L.  575. 

The  signature  of  an  attesting  witness,  who  is  absent  from  the 
State,  may  be  proved  in  the  same  way  as  though  dead.  New  Jersey 
Zinc  Co.  v.  Lehigh  Zinc  Co.,  59  N.  J.  L.  189. 

Witness  dead. —  Glover  v.  Armstrong,  15  N.  J.  L.  186;  Newoold 
v.  Lamb,  2  South.  449. 

Admissions. —  Last  paragraph  of  text.  Kingwood  v.  Bethlehem, 
13  N.  J.  L.  221. 

An  admission  by  a  party  that  he  executed  a  certain  instrument 
does  not  relieve  the  other  from  proving  the  execution  by  the  sub- 
scribing witnesses.     Hogland  v.  Sebring,  4  N.  J.  L.  105. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  356 

Statutes. —  Proof  of  acknowledgment  and  execution  of  deeds. 
G.  S.  1895,  "  Conveyances,"  4,  5,  7,  88,  100. 

Depositions  of  subscribing  witnesses  to  a  will.  G.  S.  1895, 
"  Orphans'  Courts,"   17. 

Competency  of  attesting  witnesses  to  wills.     G.  S.  1895,  "  Wills,"  6. 

Maryland. 

Statute. —  The  general  rule  abrogated  except  as  to  wills.  P.  G.  L. 
1888,  art-.  35,  sec.  6. 

Under  statute  of  1825,  proof  of  instruments  except  wills  may  be 
made  without  calling  the  attesting  witnesses.  Pannell  v.  Williams, 
8  G.  &  J.  511;  Sheppard  v.  Bevans,  4  Md.  Ch.  408;  Kecfer  v.  Zim- 
merman, 22  Md.  274. 

The  testimony  of  an  attesting  witness  is  required  as  to  the 
identity  of  the  person  signing  by  mark  as  well  as  to  the  execution 
of  the  instrument.     Eichelberger  v.  Sifford,  27   Md.  320. 

Proof  of  handwriting. —  Parker  v.  Fassitt,  1  H.  &  J.  337. 

It  is  sufficient  for  an  attesting  witness  to  identify  his  own  signa- 
ture, even  though  he  has  no  independent  recollection  of  having  seen 
the  instrument  signed,  sealed,  or  delivered.  Miller  v.  Honey,  4 
H.  &  J.  241. 

Proof  of  the  handwriting  of  a  deceased  witness  is  enough,  without 
proving  the  handwriting  of  the  maker.  Parker  v.  Fassitt,  1  H.  &  J. 
337. 

Absent  witness. —  If  an  attesting  witness  cannot  be  located  or 
resides  beyond  the  jurisdiction,  execution  may  be  proved  by  proof 
of  such  witness'  handwriting.     Dorsey  v.  Smith,  7  H.  &  J.  345. 

Temporary  absence  of  the  witness  from  the  State  is  not  sufficient 
to  admit  proof  of  his  handwriting.     Gaither  v.   Martin,  3  Md.   146. 

Proof  of  the  execution  of  documents  not  recorded  in  other  States, 
attested  and  unattested.    P.  G.  L.  1888,  art.  35,  sees.  39,  40. 

Pennsylvania. 

Authorities. —  January  v.  Goodman,  1  Dall.  208;  Peters  v.  Con- 
dron,  2  S.  &  R.  80;  Truly  v.  Byers,  6  Pa.  347;  Davison  v.  Bloomer, 
1  Dall.  123. 

One  who  sees  an  instrument  signed  and  then  subscribes  it  himself 
without  being  requested  to  do  so  is  not  an  attesting  witness  in  the 
sense  that  proof  of  his  signature  proves  the  execution.  Huston  v. 
Ticknor,  99  Pa.  231. 


356  A  DIGEST  OF  [Past  II. 

The  admissions  of  a  party  to  a  negotiable  instrument  may  be 
proved  without  lirst  producing  an  attesting  witness.  Williams  v. 
Floyd,  11  Pa.  499. 

Evidence  preliminary  to  proof  of  handwriting. —  The  handwriting 
of  one  witness  cannot  be  proved  so  long  as  there  is  another  witness 
unaccounted  for.     Tarns  v.  Hitner,  9  Pa.  441. 

Attesting  witnesses  must  be  produced  or  their  absence  satis- 
factorily explained,  before  evidence  of  handwriting  is  admissible. 
January  v.  Goodman,  1  Dall.  208;  Bura  v.  Thompson,  2  Clark,  143. 
See  Williams  v.  Floyd,  11  Pa.  499. 

Proof  of  the  obligor's  handwriting  may  be  made.  Clark  v.  Sander- 
son, 3  Binn.  192. 

The  attesting  witness  to  a  lost  receipt  must  be  called  or  ac- 
counted for.     McMahan  v.  McGrady,  5  S.  &  R.  314. 

Only  one  subscribing  witness  need  be  called. —  McAdams  v.  Stil- 
well,  13  Pa.  90. 

Absent  witness. —  Handwriting  may  be  proved  when  the  witness 
cannot  be  located.     Gallagher  v.  London  Assur.  Corp.,  149  Pa.  25. 

Witnesses  dead. —  Proof  of  execution  may  be  made  by  a  party  to 
the  instrument  who  saw  the  witnesses  sign.  Irvin  v.  Patchin,  104 
Pa.  51. 

Insanity. —  If  a  witness  is  insane,  proof  of  his  handwriting  may 
be  made.     ~Seely  v.  ~Xeely,  17  Pa.  227. 

Lost  document. —  If  a  document  is  lost,  the  rule  is  the  same  as 
that  stated  in  the  text  with  reference  to  burnt  documents.  Porter 
v.   Wilson,  13  Pa.  641. 

Article  67.* 
cases  ix  which  attesting  witness  need  not  be  called. 

In  the  following  cases,  and  in  the  case  mentioned  in 
Article  8S,  but  in  no  others,  a  person  seeking  to  prove  the 
execution  of  a  document  required  by  law  to  be  attested  is 
not  bound  to  call  for  that  purpose  either  the  party  who 
executed  the  deed  or  any  attesting  witness,  or  to  prove  the 
handwriting  of  any  such  party  or  attesting  witness — 

*  See  Note  XXVIII. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  357 

(1)  When  he  is  entitled  to  give  secondary  evidence  of 
the  contents  of  the  document  under  Article  71  (a)  ;10 

(2)  When  his  opponent  produces  it  when  called  upon  and 
claims  an  interest  under  it  in  reference  to  the  subject-matter 
of  the  suit  ;" 

(3)  When  the  person  against  whom  the  document  is 
sought  to  be  proved  is  a  public  officer  bound  by  law  to  pro- 
cure its  due  execution,  who  has  dealt  with  it  as  a  document 
duly  executed.12 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  570-575; 
11  Am.  &  Eng.  Encyclopaedia  of  Law   (2d  ed.),  p.  586  et  seq. 

The  testimony  of  attesting  witnesses  is,  probably,  not  necessary 
where  the  document  is  offered  collaterally  in  a  proceeding  affecting 
only  strangers  to  it.  Com.  v.  Castles,  9  Gray  (Mass.),  121 ;  Skinner  v. 
Brigham,  126  Mass.  132. 

Where  a  document  comes  in  incidentally  in  a  suit  between 
strangers,  the  attesting  witnesses  need  not  be  called.  Ayers  v. 
c . 

10  Cooke  v.  Tamswell,  1818,  8  Tau.  450;  Poole  v.  Warren,  1838, 
8  A.  &  E.  582. 

n  Pearce  v.  Hooper,  1810,  3  Tau.  60;  Reardcn  v.  Minter,  1843, 
5  M.  &  G.  204.  As  to  the  sort  of  interest  necessary  to  bring  a  case 
within  this  exception,  see  Collins  v.  <Bayntun,  1841,  1  Q.  B.  118. 

12  Plumer  v.  Briscoe,  1847,  11  Q.  B.  46.  Bailey  v.  Bidwell,  1844, 
13  M.  &  W.  73,  would  perhaps  justify  a  slight  enlargement  of  the  ex- 
ception, but  the  circumstances  of  the  case  were  very  peculiar.  Mr. 
Taylor  (ss.  1852-3)  considers  it  doubtful  whether  the  rule  extends  to 
instruments  executed  by  corporations,  or  to  deeds  enrolled  under  the 
provisions  of  any  Act  of  Parliament,  but  his  authorities  hardly  seem 
to  support  his  view ;  at  all  events,  as  to  deeds  by  corporations. 


358  A  DIGEST  OF  [Pabt  II. 

Hewitt,  19  Me.  281,  285;  Curtis  v.  Belknap,  21  Vt.  433;  Kitchen  v. 
Smith,  101  Pa.  St.  452;  Steiner  Bros.  v.  Tranum,  98  Ala.  35;  Rand 
v.  Z)od$re,  17  N.  H.  343,  357. 

Recorded  instruments. —  In  some  States  recorded  instruments  may 
be  proved  without  calling  the  subscribing  witnesses.  Knox  v.  Sillo- 
way,  1  Fairf.  (Me.)  201 ;  Kelsey  v.  Eanmer,  18  Conn.  311,  318;  Gragg 
v.  Learned,  109  Mass.  167;  Burghart  v.  Turner,  12  Pick.  (Mass.)  534, 
538;  Scanlon  v.  Wright,  13  Pick.  (Mass.)  523,  527,  25  Am.  Dec.  344. 
See  Broion  v.  Oldham,  123  Mo.  621. 

Interest  claimed  by  opponent. —  Sustaining  text .  McGregor  v. 
Wait,  10  Gray  (Mass.),  72,  69  Am.  Dec.  305;  Adams  v.  O'Connor, 
100  Mass.  515;  Woodstock  Iron  Co.  v.  Reed,  84  Ala.  493;  Balliett  v. 
Fink,  28  Pa.  St.  266. 

Secondary  evidence  of  contents. — Jackson  v.  Woolsey,  11  Johns.  446. 

New  Jersey. 

Authorities. —  An  attesting  witness  to  a  lost  deed  need  not  be 
called  when  the  object  of  proving  its  contents  is  not  to  establish 
title  but  to  establish  the  fact  of  a  covenant  therein.  Ketcham  v. 
Brooks,  27  N.  J.  Eq.  347. 

Wills  probated  in  another  State  may  be  recorded  in  New  Jersey, 
and  such  record  dispenses  with  the  necessity  of  producing  attesting 
witnesses  to  prove  the  will.     Kelson  v.  Potter,  50  N.  J.  L.  324. 

Pennsylvania. 

If  the  maker  of  a  note  admits  his  signature,  the  attesting  witness 
need  not  be  called.     Williams  v.  Floyd,  11  Pa.  499. 

Where  a  document  comes  in  incidentally  in  a  suit  between 
strangers,  the  attesting  witnesses  need  not  be  called.  Kitchen  V. 
Smith,  101  Pa.  452. 

Interest  claimed  by  opponent. —  Sustaining  text.  Balliett  v.  Fink, 
28  Pa.  266. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  359 


Article  68. 

proof  when  attesting  witness  denies  the  execution. 

If  the  attesting  witness  denies  or  does  not  recollect  the 
execution  of  the  document,  its  execution  may  be  proved  by 
other  evidence.13 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed. ),  sec.  572;  11 
Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed. ),  p.  598;  Frost  v.  Deer- 
ing,  21  Me.  156;  Whitaker  v.  Salisbury,  15  Pick.  (Mass.)  534,  544; 
Thomas  v.  Le  Baron,  8  Mete.  (Mass.)  355;  Tompson  v.  Fisher,  123 
Mass.  559;  Patterson  v.  Tucker,  9  N.  J.  L.  322;  Hamsher  v.  Kline, 
57  Pa.  St.  397;  Barnewall  v.  Murrell,  108  Ala.  366;  Webb  v.  Dye,  18 
W.  Va.  376.     Compare  Frost  v.  Deering,  21  Me.  156. 

Sustaining  rule  of  the  text. —  Duckwall  v.  Weaver,  2  Ohio,  13,  hold- 
ing that  this  is  not  impeaching  the  credit  of  one's  own  witness. 

If  a  subscribing  witness  to  a  will  fail  to  remember  or  deny  seeing 
testator  sign,  it  may  be  shown  by  other  witnesses  that  he  did  see  the 
signing.     Thompson  v.  Thompson,  2   Weekly  Law  Mag.  84. 

Where  a  writing  is  pleaded  the  execution  need  not  be  proved  unless 
it  is  denied.  Belton  v.  Smith,  45  Ind.  291 ;  Patterson  v.  Crawford, 
12  Ind.  241;  Kellar  v.  Boatman,  49  Ind.  104;  Denny  v.  University, 
16  Ind.  220. 

A  recorded  deed  may  be  proved  by  the  record,  when  the  person 
offering  the  evidence  is  not  a  party  to  the  conveyance  and  has  not 
the  control  of  it.     Doe  dent.  Gardner  v.  Vandewater,  7  Blackf.  6. 

The  execution  and  contents  of  a  lost  deed  need  not  be  proved  by  the 
subscribing  witness.  Raynor  v.  Norton,  31  Mich.  210;  Eslow  v. 
Mitchell,  26  Mich.  500. 

The  record  of  a  deed  is,  in  the  absence  of  statute,  not  primary  evi- 
dence of  genuineness.    Brown  v.  Cady,  11  Mich.  535. 

13 "  Where  an  attesting  witness  has  denied  all  knowledge  of  the 
matter,  the  case  stands  as  if  there  were  no  attesting  witness:  "  Tal- 
bot v.  Bodson,  1816,  7  Tau.  251,  254. 


360  A  DIGEST  OF  [Part  II. 

New  Jersey. 
Authorities. —  Patterson  v.  Tucker,  9  N.  J.  L.  322;  Ketchum  v. 
Johnson,  4  N.  J.  Eq.  370. 

Maryland. 

If  an  attesting  witness  denies  either  his  attestation  or  the  due 
execution  of  the  instrument,  such  fact  may  be  proved  by  other  evi- 
dence.    Handy  v.  State,  7  H.  &  J.  42. 

If  a  subscribing  witness  proves  his  signature  but  has  no  recol- 
lection of  having  seen  the  party  to  the  instrument  sign  it,  that  fact 
may  be  proved  by  the  circumstances.  Miller  v.  Honey,  4  H.  &  J. 
241.     See  Edelen  v.  Gough,  5  Gill,  103. 

Pennsylvania. 

If  a  subscribing  witness'  testimony  is  insufficient,  other  proof  is 
admissible.     Harrington  v.  Gable,  81  Pa.  406. 

If  an  attesting  witness  has  forgotten,  other  proof  of  execution  is 
admissible.     Fritz  v.   Commissioners,   17  Pa.   130. 

If  an  attesting  witness  has  forgotten  the  whole  occurrence,  but 
recognizes  his  signature,  the  document  is  admissible.  Bennett  v. 
Fulmer,  49  Pa.  155;  Hamsher  v.  Kline,  57  Pa.  397. 

Article  69. 

peoof  of  document  not  required  by  law  to  be 
attested. 

An  attested  document  not  required  by  law  to  be  attested 
may  in  all  cases  whatever,  civil  or  criminal,  be  proved  as  if 
it  was  unattested.14 

AMERICAN  NOTE. 
General. 
Authorities. —  3    Taylor   on   Evidence    (Chamberlayne's    9th   ed.), 
p.   12296   et  seq.;   11   Am.  &  Eng.  Encyclopaedia  of   Law    (2d  ed.), 
p.  593   (stating  that  the  common-law  rule  is  otherwise). 

14  28  &  29  Vict.  c.  18,  ss.  1,  7;  re-enacting  17  &  18  Vict.  c.  125, 
s.  26,  now  repealed. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  361 

Sustaining  the  text.  Houghton  v.  Jones,  1  Wall.  702,  706 ;  Medary 
v.   Cathers,  161  Pa.  St.  87. 

Contra  to  text.  Thompson  v.  Fisher,  123  Mass.  559;  Homer  v.  Wal- 
lis,  11  Mass.  309;  Giannone  v.  Fleetwood,  93  Ga.  491. 

Relative  to  proving  unattested  documents,  see  Seibold  v.  Rogers, 
110  Ala.  438;  Nichols  v.  Allen,  112  Mass.  23;  Pullen  v.  Hutchinson, 
25  Me.  249. 

The  common  law  is  contrary  to  the  text.  If  a  note  be  attested  by 
witnesses,  the  genuineness  of  the  signature  cannot  be  proved  by  a  com- 
parison of  hands,  without  calling  them.  Laic  v.  At  water,  2  Root 
(Conn.),  72;  Knap  v.  Sacket,  1  Root  (Conn.),  502. 

The  common-law  rule  is  otherwise.  See  Sackett  v.  Sackett,  7  Wend. 
94. 

With  reference  to  proving  documents  unattested,  see  St.  John  ▼. 
Amer.  Ins.  Co.,  2  Duer,  419. 

As  to  the  effect  thereof  where  the  circumstances  of  the  case  were 
peculiar,  see  Sanger  v.  Merritt,  131  N.  Y.  614,  43  N.  Y.  St.  R.  99, 
affirming  39  N.  Y.  St.  R.  894.    See  120  N.  Y.  129. 

Pennsylvania. 

Sustaining  the  text.     Medary  v.  Cathers,  161  Pa.  87. 

Article  70. 
secondary  evidence. 

Secondary  evidence  means — 

(1)  Examined  copies,  exemplifications,  office  copies,  and 
certified  copies  :15 

(2)  Other  copies  made  from  the  original  and  proved  to 
be  correct : 

(3)  Counterparts  of  documents  as  against  the  parties 
who  did  not  execute  them  :16 

(4)  Oral  accounts  of  the  contents  of  a  document  given  by 
some  person  who  has  himself  seen  it. 

«  See  Chapter  X.  16  Munn  v.  Qodbold,  1825,  3  Bing.  292. 


362  A  DIGEST  OF  [Pabt  II. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  84  et  seq.; 
11  Am.  &  Eng.  Encyclopaedia  of  Law   (2d  ed.),  pp.  535,  583  et  seq. 

In  giving  testimony,  a  witness  must  recollect  the  substance  of  the 
document.  Camden  v.  Belgrade,  78  Me.  204;  Richard's  Appeal,  122 
Pa.  St.  547 ;  Mayor  of  Baltimore  v.  War,  77  Md.  593. 

The  correctness  of  a  copy  may  be  proved  by  the  testimony  of  one 
who  compared  it  with  a  paper  read  as  the  original  by  another. 
Lynde  v.  Judd,  3  Day  (Conn.),  500. 

A  copy  of  a  copy  may  be  competent  evidence.  It  is  not,  however, 
if  the  original  is  in  existence.  Cameron  v.  Peck,  37  Conn.  555,  558; 
Winn  v.  Patterson,  9  Pet.   (U.  S.)  663. 

Due  diligence  to  procure  the  attendance  of  the  subscribing  wit- 
nesses must  be  proved  before  secondary  evidence  of  the  execution  of 
a  written  contract  can  be  admitted.  Mills  v.  Twist,  8  Johns.  121 ; 
Willoughby  v.  Carleton,  9  Johns.  136.  See  People  v.  Rowland,  5  Barb. 
449. 

Proof  of  the  genuineness  of  an  instrument  is  always  necessary, 
even  if  secondary  evidence  of  its  contents  is  admitted.  Nichols  v. 
Kingdom  Iron  Ore  Co.,  56  N.  Y.  618. 

If  a  corporation  has  omitted  to  make  a  record  of  its  actions,  sec- 
ondary evidence  may  be  introduced.  St.  Mary's  Church  v.  Cagger,  6 
Barb.  576;  Smith  v.  Helmer,  7  Barb.  416. 

Where  the  defendant  gave  a  copy  to  the  plaintiff  to  guide  him  in 
performing  his  contract,  this  is  evidence  without  accounting  for  the 
original.  Moore  v.  Belloni,  10  J.  &  S.  184.  But  the  draft  of  an  un- 
executed contract  containing  the  supposed  agreement  of  the  parties 
is  not  evidence.    Flood  v.  Mitchell,  4  Hun,  813.  68  X.  Y.  507. 

Examined,  exemplified,  office,  and  certified  copies. —  See  articles 
75-79,  inclusive. 

Other  copies  from  the  original. —  De  Groot  v.  Fulton  Fire  Insurance 
Co.,  4  Rob.  504;  Campbell  v.  Wright,  8  N.  Y.  St.  R.  471,  118  N.  Y. 
594. 

A  copy  containing  the  entire  account,  which  thereby  duplicated 
items  contained  in  the  original,  was  not,  by  reason  thereof,  to  be 
rejected,  for  the  fact  that  the  items  were  duplicated  became  apparent 
on  inspection.    Hodnett  v.  Gault,  71  N.  Y.  Supp.  831. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  363 

Letter-press  copies  of  documents  come  under  the  head  of  secondary 
evidence.  Foot  v.  Bently,  44  N.  Y.  166,  4  Am.  Rep.  652.  See,  also, 
Haas  v.  Storner,  21  Misc.  Kep.  601;  Boyer  v.  Rhinehart,  44  N.  Y. 
St.  R.  370,  17  N.  Y.  Supp.  346;  affirmed,  137  N.  Y.  564. 

Counterparts. —  Counterparts  of  documents  are  secondary  evidence. 
Nicoll  v.  Burke,  8  Abb.  N.  C.  213.  See  Roland  v.  Pinckney,  8  Misc. 
Rep.  458. 

Oral  accounts  of  contents  of  a  document. —  Artcher  v.  McDuffie, 
5  Barb.  147 ;  Scott  v.  Betts,  Lalor,  363 ;  Chrysler  v.  Griswold,  43  N.  Y. 
209. 

New  Jersey. 

Copies  and  parol  proof. —  Smith  v.  Axtell,  1  N.  J.  Eq.  494 ;  Seivard 
v.   Vandegrift,  Pen.  92e. 

A  by-law  of  the  board  of  freeholders  not  provable  by  a  printed 
copy.     Downie  v.  Passaic,  54  N.  J.  L.  223. 

A  copy  of  an  entry  in  a  family  Bible  not  admissible.  Ryerson  v. 
Orover,  Coxe,  458. 

A  compared  copy. —  Tindall  v.   Mclntyre,  4  Zab.   147. 

After  proving  that  a  document  is  lost,  a  copy  may  be  introduced 
and  proved  to  be  correct.    Bozorth  v.  Davidson,  3  N.  J.  L.  200. 

Maryland. 

Authorities. —  The  rules  as  to  secondary  evidence  of  the  contents 
of  lost  instruments  are  the  same  in  civil  and  in  criminal  law. 
Brashears  v.  State,  58  Md.  563. 

Oral  testimony  of  a  fact  is  not  necessarily  secondary,,  even  though 
there  is  written  evidence  of  the  same  fact.  In  such  case  it  is  ad- 
missible because  not  given  to  prove  the  contents  of  a  writing  but 
to  prove  a  fact  outside  thereof.  Glenn  v.  Rogers,  3  Md.  312; 
Cramer  v.  Shriner,  18  Md.  140. 

To  prove  value,  evidence  of  the  price  of  similar  goods  in  the 
neighborhood  is  not  secondary,  though  it  is  not  so  strong  as  the 
evidence  of  a  witness  who  knows  the  price  of  these  goods.  William- 
son v.  Dillon,  1  H.  &  G.  444. 

When  a  party  has  suppressed  evidence  the  court  will  be  more 
liberal  in  allowing  the  facts  to  be  proved  by  weaker  classes  of  evi- 
dence.    Love  v.  Dilley,  64  Md.  238. 


/ 


364  A  DIGEST  OF  [Pabt  IT. 

A  telegram  as  delivered  is  only  secondary  evidence,  and  is  ad- 
missible as  such  only  on  proof  that  it  was  actually  sent  by  the 
person  in  question.     Smith  v.  Easton,  54  Md.   138. 

In  giving  testimony,  a  witness  must  recollect  the  substance  of  the 
document.     Mayor  of  Baltimore  v.  War,  77   Md.  593. 

Copies. —  A  copy  of  a  document  is  only  secondary  evidence.  Hay- 
ward  v.  Carroll,  4  H.  &  J.  518;  Green  v.  Caulk,  16  Md.  556. 

A  press  copy  of  a  letter  is  secondary  evidence.  Marsh  v.  Hand, 
35  Md.  123. 

Pennsylvania. 

Authorities. —  Evidence  is  deemed  secondary  only  when  it  indi- 
cates that  there  is  better  in  existence.  Cutbush  v.  Gilbert,  4  S.  &  R. 
551. 

The  best  evidence  in  one's  power  must  be  produced.  Hamilton  V. 
Van  Swearingen,  Add.  48;  Bank  v.  Whitehall,  16  S.  &  R.  89;  Bry- 
ant v.  Stilwell,  24  Pa.  314;  White's  Estate,  32  Leg.  Int.  430. 

A  book  of  original  entry  is  not  necessarily  the  best  evidence  of 
goods  sold.    Adams  v.  Steamboat  Co.,  3  Whart.  75. 

In  proving  foreign  statutes  as  a  fact,  the  best  evidence  rule  is 
relaxed  on  the  ground  of  convenience.  Phillips  v.  Gregg,  10  Watts, 
158. 

Degrees  in  secondary  evidence. —  A  facsimile  press  copy  of  a  let- 
ter is  better  evidence  than  oral  testimony.  Stevenson  v.  Hoy,  43  Pa. 
191. 

Copies. —  Entries  in  a  family  Bible  copied  from  another  record 
are  secondary  evidence.     Curtis  v.  Patton,  6  S.  &  R.  135. 

A  correct  copy  admissible  only  as  secondary  evidence.  Sweigart 
v.  Lowmarter,  14  S.  &  R.  200. 

A  copy  is  secondary  evidence  and  admissible  only  in  case  the 
original  cannot  be  produced.     Shortz  v.  Unangst,  3  W.  &  S.  45. 

A  record  of  an  instrument  is  not  admissible,  if  not  required  by 
law  to  be  kept.     Fitler  v.  Shoticell,  7  W.  &  S.  14. 

The  witness  testifying  as  to  the  contents  of  a  document  must  have 
actual  knowledge  of  it  and  be  able  to  give  its  substance.  Appeal  of 
Richards,  122  Pa.  547. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  365 


Article  71. 

cases  in  which  secondary  evidence  relating  to 
documents  may  be  given. 

Secondary  evidence  may  be  given  of  the  contents  of  a 
document  in  the  following  cases — 

(a)  When  the  original  is  shown  or  appears  to  be  in  the 
possession  or  power  of  the  adverse  party, 

and  when,  after  the  notice  mentioned  in  Article  72,  he 
does  not  produce  it  ;17 

(b)  When  the  original  is  shown  or  appears  to  be  in  the 
possession  or  power  of  a  stranger  not  legally  bound  to  pro- 
duce it,  and  who  refuses  to  produce  it  after  being  served 
with  a  subpoena  duces  tecum,  or  after  having  been  sworn  as 
a  witness  and  asked  for  the  document  and  having  admitted 
that  it  is  in  court  ;18 

(c)  When  the  original  has  been  destroyed  or  lost,  and 
proper  search  has  been  made  for  it  ;19 

17  R.  v.  Watson,  1788,  2  T.  R.  at  p.  201.  Entick  v.  Carrington, 
1765,  19  S.  T.  at  p.  1073,  is  cited  by  Mr.  Phillips  as  an  authority  for 
this  proposition.  I  do  not  think  it  supports  it,  but  it  shows  the 
necessity  for  the  rule,  as  at  common  law  no  power  existed  to  compel 
the  production  of  documents. 

18  Miles  v.  Oddy,  1834,  6  C.  &  P.  at  p.  732;  Marston  v.  Dowries, 
1834,  1  A.  &  E.  31. 

19  1  Ph.  Ev.  s.  452;  2  Ph.  Ev.  281 ;  Taylor  (from  Greenleaf),  s.  429. 
The  loss  may  be  proved  by  an  admission  of  the  party  or  his  attorney; 
R.  v.  Haworth,  1830,  4  C.  &  P.  254. 


360  A  DIGEST  OF  [Part  II. 

(d)  When  the  original  is  of  such  a  nature  as  not  to  be 
easily  movable,20  or  is  in  a  country  from  which  it  is  not  per- 
mitted to  be  removed  ;21 

(e)  When  the  original  is  a  public  document;22 

(/)  When  the  document  is  an  entry  in  a  banker's  book,, 
proof  of  which  is  admissible  under  Article  36. 

(g)  When  the  original  is  a  document  for  the  proof  of 
which  special  provision  is  made  by  any  Act  of  Parliament,, 
or  any  law  in  force  for  the  time  being;22  or 

(h)  When  the  originals  consist  of  numerous  documents 
which  cannot  conveniently  be  examined  in  court,  and  the 
fact  to  be  proved  is  the  general  result  of  the  whole  collec- 
tion: provided  that  that  result  is  capable  of  being  ascer- 
tained by  calculation.23 

Subject  to  the  provisions  hereinafter  contained  any  sec- 
ondary evidence  of  a  document  is  admissible.24 

In  case  (/)  the  copies  cannot  be  received  as  evidence 
unless  it  be  first  proved  that  the  book  in  which  the  entries 
copied  were  made  was  at  the  time  of  making  one  of  the  ordi- 

20  Mortimer  v.  McCallan,  1840,  6  M.  &  W.  at  pp.  67,  68  (referring 
to  the  case  of  a  libel  written  on  a  wall)  ;  Bruce  v.  Nicolopulo,  1855, 
11  Ex.  133  (the  ease  of  a  placard  posted  on  a  wall). 

21  Alivon  v.  Furnival,  1834,  1  C.  M.  &  R.  277,  291-2. 

22  See  Chapter  X. 

23  Roberts  v.  Boxen,  1791,  1  Peake,  116;  Meyer  v.  Sefton,  1817,  2 
Star,  at  p.  276.  The  books,  &c,  should  in  such  a  case  be  ready  to  be 
produced  if  required.  Johnson  v.  Kershaw,  1847,  1  De  G.  &  S.  at 
p.  264. 

24  If  a  counterpart  is  known  to  exist,  it  is  the  safest  course  to  pro- 
duce or  account  for  it:  Munn  v.  Godbold,  1825,  3  Bing.  297;  R.  v. 
Castleton,  1795,  6  T.  R.  236. 


Chap.  IX.]  TEE  LAW  OF  EVIDENCE.  367 

nary  books  of  the  bank,  and  that  the  entry  was  made  in  the 
usual  and  ordinary  course  of  business,  and  that  the  book 
is  in  the  custody  and  control  of  the  bank,  which  proof  may 
be  given  orally  or  by  affidavit  by  a  partner  or  officer  of  the 
bank,  and  that  the  copy  has  been  examined  with  the  original 
entry  and  is  correct,  which  proof  must  be  given  by  some 
person  who  has  examined  the  copy  with  the  original  entry 
and  may  be  given  orally  or  by  affidavit.25 

In  case  (h)  evidence  may  be  given  as  to  the  general  re- 
sult of  the  documents  by  any  person  who  has  examined 
them,  and  who  is  skilled  in  the  examination  of  such  docu- 
ments. 

Questions  as  to  the  existence  of  facts  rendering  secondary 
evidence  of  the  contents  of  documents  admissible  are  to  be 
decided  by  the  judge,  unless  in  deciding  such  a  question  the 
judge  would  in  effect  decide  the  matter  in  issue. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  558  et  seq.; 
1  Wharton  on  Evidence,  sec.  150  et  seq. 

If  there  are  several  originals,  all  must  be  accounted  for  in  order 
to  let  in  secondary  evidence.     Dyer  v.  Fredericks,  63  Me.   173,  592. 

Some  authorities  hold  that,  if  a  document  comes  in  collaterally, 
secondary  evidence  may,  in  all  cases,  be  introduced.  Phinney  v. 
Bolt,  50  Me.  270. 

In  some  States,  as  in  England,  there  are  no  degrees  in  secondary 
evidence.     Com.  v.  Smith,  151  Mass.  491. 

In  possession  of  adverse  party. —  Thayer  v.  Middlesex  Mut.  Ins. 
Co.,  10  Pick.  (Mass.)  326;  Dana  v.  Kemble,  19  Pick.  (Mass.)  112; 
Narragansett  Bank  v.  Atlantic  Silk  Co.,  3  Mete.  (Mass.)  282;  Cool- 
idge  v.  Brigham,  5  Mete.  (Mass.)   68;  Loring  v.  Whittemore,  13  Gray 

25  42  &  43  Vict.  c.  11,  ss.  3,  5. 


368  A  DIGEST  OF  [Part  II. 

(Mass.),  228;  Dooley  v.  Cheshire  Glass  Co.,  15  Gray  (Mass.),  494; 
Day  v.  Floyd,  130  Mass.  488;  Morse  v.  Woodworth,  155  Mass.  233,  29 
N.  E.  525;  Com.  v.  Shurn,  145  Mass.  150;  Dunbar  v.  U.  S.,  156  U.  S. 
185;  Bishop  v.  Amer.  Preserver's  Co.,  157  111.  284;  Carland  v.  Cun- 
ningham, 37  Pa.  St.  228;  Eeagle  v.  Pessell,  91  Mich.  618;  Golden  v. 
Conner,  89  Ala.  598;  Overlook  v.  #aM,  81  Me.  348;  Wesson  v.  #i$r7ir, 
18  Me.  281;  Lowell  v.  FKnf,  20  Me.,  pt.  2,  401;  Orr  v.  CZarfc,  62  Vt. 
136,  19  Atl.  929;  Sedgioick  v.  Waterman,  2  Root  (Conn.),  434;  Mor- 
gan v.  Minor,  2  Root  (Conn.),  220;  .Koss  v.  Bruce,  1  Day  (Conn.), 
100. 

Document  lost  or  destroyed. — Tobin  v.  Shaw,  45  Me.  331,  71  Am. 
Dec.  547;  Gates  v.  Bowker,  18  Vt.  23;  Spear  v.  TtZson,  24  Vt.  420; 
Stebbins  v.  Duncan,  108  U.  S.  32;  Gorgas  v.  fferte,  150  Pa.  538; 
McConnell  v.  Wifofes,  153  Mass.  487;  Hatch  v.  Carpenter,  9  Gray 
(Mass.),  271;  Oriental  Bank  v.  Haskins,  3  Mete.  (Mass.)  332,  37  Am. 
Dec.  140. 

But  one  who  has  intentionally  destroyed  an  instrument  cannot 
give  evidence  as  to  its  contents,  without  first  giving  evidence  to 
rebut  the  suspicion  of  fraud,  arising  from  the  act.  Joannes  v.  Ben- 
nett, 5  Allen  (Mass.),  169;  Kelly  v.  Riggs,  2  Root  (Conn.),  128; 
Kelsey  v.  Eanmer,  18  Conn.  317;  Elwell  v.  Mersick,  50  Conn.  274; 
Bank  of  United  States  v.  Sill,  5  Conn.  106,  13  Am.  Dec.  44. 

Diligent  search  must  be  made.  McCollister  v.  Yard,  90  la.  621 ; 
Mullauphy  Bank  v.  Schott,  135  111.  655;  Darrow  v.  Pierce,  91  Mich. 
63.     See  Gunther  v.  Bennett,  72  Md.  384. 

The  amount  of  evidence  required  to  prove  the  loss  of  a  written 
instrument,  for  the  purpose  of  admitting  secondary  evidence  of  its 
contents,  depends  much  upon  the  nature  of  the  instrument,  the 
reasons  for  its  preservation,  and  the  circumstances  of  the  case. 
Waller  v.  Eleventh  School  District,  22  Conn.   333. 

The  question  whether  the  loss  of  a  document  has  been  satis- 
factorily proved,  so  that  secondary  evidence  of  its  contents  can  be 
admitted,  is  wholly  one  of  discretion  with  the  judge  trying  the  case, 
and  cannot  be  reviewed  on  error.  Elwell  v.  Mersick,  50  Conn.  274; 
Witter  v.  Latham,  12  Conn.  399,  400. 

Where  the  plaintiff  declares  upon  a  writing,  and  alleges  that  it  is 
lost  or  destroyed,  the  loss  or  destruction  is  a  preliminary  question 
for  the  court,  not  a  material  and  traversable  fact  to  be  determined 
by  the  jury.  Witter  v.  Latham,  12  Conn.  400;  Fitch  v.  Bogue,  19 
Conn.  289,  overruling  Coleman  v.  Wolcott,  4  Day  (Conn.),  394,  and 
Paddock  v.  Biggins,  2  Root  (Conn.),  483. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  369 

Out  of  jurisdiction. —  Where  a  document  is  out  of  the  jurisdic- 
tion in  the  hands  of  a  third  party,  secondary  evidence  is  admissible. 
Elwell  v.  Mersick,  50  Conn.  274 ;  Shepard  v.  Giddings,  22  Conn.  283 ; 
Stevens  v.  Miles,  142  Mass.  571;  L'Herbette  v.  Pittsfield  Nat.-  Bank, 
162  Mass.  137;  Eaton  v.  Campbell,  7  Pick.  (Mass.)  10;  Knicker- 
bocker v.  Wilcox,  83  Mich.  200 ;  Fosdick  v.  Van  Horn,  40  O.  St.  459 ; 
Burton  v.  Driggs,  20  Wall.  (U.  S.)  125,  134;  Memphis,  etc.,  R.  Co. 
v.  Hembree,  84  Ala.  182;  Otto  v.  Trump,  115  Pa.  St.  425,  430;  Zaller- 
bach  v.  Allenberg,  99  Cal.  57;  Bowman  v.  Sanborn,  5  Fost.  (N.  H.) 
87,  112;  Beattie  v.  Hilliard,  55  N.  H.  428;  Knowlton  v.  Knowlton, 
84  Me.  283,  24  Atl.  847;  Burnham  v.  Wood,  8  N.  H.  334;  Little  v. 
Paddleford,  13  N.  H.  167;  Lord  v.  Staples,  23  N.  H.  448. 

In  possession  of  third  person. — Sherwood  v.  Hubbel,  1  Root  (Conn.), 
498;  Halscy  v.  Fanning,  2  Root  (Conn.),  101;  Lynde  v.  </ttdd,  3  Day 
(Conn.),  499;  &<oftoe  v.  St.  Paul,  etc.,  R.  Co.,  40  Minn.  545;  State  v. 
Gurnec,  14  Kan.  Ill;  Corbett  v.  Gibson,  16  Blatchf.  334. 

Not  easily  movable. —  North  Brookfield  v.  Warren,  16  Gray  (Mass.), 
171,  174;  Stearns  v.  Doc,  12  Gray  (Mass.),  482. 

Numerous  documents. —  Sustaining  text .  Boston  &  W.  R.  R.  Co. 
v.  Dana,  1  Gray  (Mass.),  83;  Burton  v.  Driggs,  20  Wall.  125;  Chicago, 
etc.,  R.  Co.  v.  Wolcott,  141  Ind.  267 ;  Wolford  v.  Farnham,  47  Minn. 
95;  State  v.  Findley,  101  Mo.  217. 

Not  produced  on  notice. —  If  a  document  is  not  produced  on  notice, 
secondary  evidence  is  admissible.  Bishop  v.  Am.  Preserve  Co.,  157 
111.  284. 

Preliminary  evidence. —  Blakely  v.  Pease,  95  111.  App.  341. 

A  foundation  must  be  laid  for  secondary  evidence.  Chisholm  v. 
Beaver  L.  S.  Co.,  18  111.  App.  131 ;  Wing  v.  Sherrer,  77  111.  200. 

Before  secondary  evidence  can  come  in,  the  absence  of  the  original 
must  be  accounted  for.  Massey  v.  Farmers'  Nat.  Bank,  113  111.  334, 
338. 

As  to  the  search  necessary  for  the  introduction  of  proof  of  the  con- 
tents of  tax  receipts,  under  Hurd's  Rev.  Stat.,  1S99,  p.  1420,  chap. 
120,  sec.  163,  see  Scott  v.  Bassett,  194  111.  602,  62  N.  E.  914;  Crocker 
V.  Lowenthal,  83  111.  579;  Hazen  v.  Pierson,  83  111.  241;  McDonald 
v.  Stark,  176  111.  456,  52  N.  E.  337;  Harrall  v.  Enterprise  Sav.  Bank, 
182  111.  538,  56  N.  E.  63;  Hawley  v.  Hawley,  187  111.  321,  58  N.  E. 
332 ;  Wells  v.  Miller,  37  111.  276. 

In  order  to  admit  copies  of  letters,  the  proper  foundation  for  sec- 
24 


370  A  DIGEST  OF  [Part  II. 

ondary  evidence  must  be  laid.    La  Salle  P.  B.  Co.  v.  Coe,  53  111.  App. 
506. 

Proof  of  loss  in  suit  on  a  bond  must  be  clear  and  satisfactory. 
McCart  v.  Wakefield,  72  111.  101. 

In  order  to  introduce  secondary  evidence,  it  is  not  necessary  that 
proof  of  the  loss  be  beyond  the  possibility  of  a  mistake.  Western 
Union  Tel.  Co.  v.  Kemp  Bros.,  35  111.  App.  583. 

Preliminary  proof  of  loss  is  necessary  as  required  by  3  Star.  &  C. 
Annot.  Stat.,  1896,  p.  3360,  and  1  Star.  &  C.  Annot.  Stat.,  1896^ 
p.  955.     Glos  v.  Hallowell,  90  111.  App.  65,  60  N.  E.  62. 

Search  for  a  paper,  in  order  to  let  in  secondary  evidence,  must  be 
made  at  the  place  where  it  would  naturally  be  found.  Doyle  v. 
Wiley,  15  111.  576;  Cook  v.  Hunt,  24  111.  535,  550;  Stow  v.  People, 
25  111.  81;  Rankin  v.  Crow,  19  111.  626;  Mariner  v.  Saunders,  5  Gilrm 
113. 

In  order  to  render  a  copy  of  a  mortgage  admissible,  reasonable 
efforts  to  procure  the  original  must  have  been  made.  Roberts  v. 
Haskell,  20  111.  59. 

Proof  of  loss  is  preliminary  to  the  introduction  of  a  copy.  Pardee 
v.  Lindley,  31  111.  174. 

Affidavit  of  loss,  etc. —  Under  Hurd's  Rev.  Stat.,  1899,  p.  409,  chap. 
30,  sec.  36,  the  preliminary  evidence  necessary  to  render  secondary 
evidence  admissible  may  be  by  affidavit.  Scott  v.  Bassett,  194  111. 
602,  62  N.  E.  914. 

The  preliminary  proof  of  the  loss  of  notes  may  be  made  by  affi- 
davit. Wade  v.  Wade,  12  111.  89;  Palmer  v.  Logan,  3  Scam.  56;  Dor- 
mady  v.  State  Bank  of  Illinois,  2  Scam.  236;  Taylor  v.  Mclrvin,  94 
111.  488. 

The  affidavit  must  show  certainty.  Holbrook  v.  Trustees,  28  111. 
187;  Rogers  v.  Miller,  4  Scam.  333;   Palmer  v.  Logan,  3  Scam.  56. 

The  affidavit,  however,  of  third  parties  competent  to  testify  is  not 
admissible.       Becker  v.  Quigg,  54  111.  390. 

The  affidavit  must  give  the  details  of  the  search.  Booth  v.  Cook, 
20  111.  129. 

It  is  not  enough  to  state  simply  that  diligent  search  has  been  made. 
Rankin  v.  Crow,  19  111.  626. 

An  affidavit  of  a  party  "  that  he  did  not  have  the  deed  in  his  pos- 
session, that  he  did  not  know  where  it  was,"  complies  with  the  law. 
Nixon  v.  Cobleigh,  52  111.  387. 

Any  person  having  any  knowledge  of  the  facts  may  prove  the  loss^ 
Weis  v.  Tiernan,  91  111.  27. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  371 

As  to  the  diligence  of  the  search  for  a  lost  deed,  see  Taylor  v. 
Mclrvin,  94  111.  488. 

The  preliminary  proof  of  loss  or  destruction  is  for  the  court. 
Loewe  v.  Reismann,  8  Brad.  525. 

Lost  papers. —  The  contents  of  a  lost  instrument  may  be  proved. 
Kank.  Coal  Co.  v.  Crane  B.  Co.,  38  111.  App.  557,  99  111.  App.  559,  561. 

The  contents  of  a  lost  note  may  be  shown,  proper  foundation  for 
the  evidence  having  been  laid.  Grimes  v.  Hillary,  150  111.  141;  O'Neil 
v.  O'Neil,  123  111.  361,  363. 

In  order  to  prove  the  contents  of  a  note  and  mortgage,  the  original 
must  be  shown  to  be  lost.     Dowden  v.  Wilson,  71  111.  485. 

As  to  copies  of  indictments  which  have  been  lost  or  destroyed,  see 
Hurd's  Rev.  Stat.,  chap.  38,  sec.  413,  p.  633. 

When  a  proper  foundation  has  been  laid,  a  witness  may  state  his 
recollection  of  the  contents  of  a  lost  letter.  Case  v.  Lyman,  66 
111.  229. 

The  contents  of  an  affidavit  may  be  proved  by  parol.  Ashley  v. 
Johnson,  74  111.  392. 

As  to  proof  of  bankruptcy  discharge,  see  Young  v.  Denslinger,  2 
Brad.  23. 

Secondary  evidence  of  a  deed  is  admissible,  the  original  being  lost. 
Tucker  v.  Shaw,  158  111.  326;  Gillespie  v.  Gillespie,  159  111.  84. 

The  execution  of  a  lost  deed  must  be  proved.  Mariner  v.  Lamden, 
5  Gilm.  113. 

Any  witness  who  knows  the  facts  may  prove  the  contents  of  a  lost 
paper.      Rankin  v.  Crow,  19  111.  627. 

The  contents  of  a  lost  record  of  naturalization.  Kreitz  v.  Behrens- 
meyer,  125  111.  141,  169. 

The  contents  of  a  letter  may  be  shown  if  it  is  lost.  Davis  v.  Ran- 
som, 26  111.   100. 

A  copy  of  a  lost  memorandum  is  admissible.  Ryan  v.  Miller,  153 
111.  138. 

Lost  pleading. —  Where  a  pleading  has  been  lost,  one  cannot  file  an 
alleged  copy  in  order  to  use  it  as  evidence,  but  the  person  assuming 
to  know  the  contents  must  take  the  stand  so  as  to  be  subjected  to 
cross-examination.      Harley  v.  Harley,  67  111.  App.  138. 

Lost  deposition. —  The  contents  of  a  lost  deposition  may  be  proved 
in  the  same  manner  as  those  of  any  other  lost  paper.  Stout  v.  Cook, 
47  111.  530;  Aulger  v.  Smith,  34  111.  534. 

The  contents  of  a  deposition  cannot  be  proved  where  it  can  be 
retaken.     Stout  v.  Cook,  47  111.  530;  Aulger  v.  Smith,  34  111.  534. 


372  A  DIGEST  OF  [Pabt  II. 

< i 

The  contents  of  a  lost  deposition  cannot  be  shown  by  the  attorney's 
minutes.     Stout  v.  Cook,  57  111.  386. 

A  copy  of  a  lost  deposition  may  be  read.  Gage  v.  Eddy,  167  111. 
102. 

Papers  destroyed. —  There  is  a  presumption  against  one  who  has 
destroyed  writings.  Anderson  v.  Irwin,  101  111.  411;  Tartar  v. 
Keeler,  61  111.  App.  625. 

One  can  only  prove  the  contents  of  an  instrument  voluntarily  de- 
stroyed by  him  when  he  repels  inference  of  fraud.  Blake  v.  Fash,  44 
111.  302. 

Where  records  are  destroyed  by  fire,  an  abstract  of  title  is  compe- 
tent.    Richley  v.  Farrell,  69  111.  264. 

The  contents  of  a  burnt  record  may  be  proved  by  parol.  Forsyth 
v.  Vehmeyer,  176  111.  359,  52  N.  E.  55,  affirming  75  111.  App.  308. 

The  contents  of  a  burnt  record  may  be  proved  from  the  testimony 
of  one  who  has  examined  it  and  of  an  abstract  maker  familiar  with 
its  contents.  Forsyth  v.  Vehmeyer,  176  111.  359,  52  N.  E.  55,  affirm- 
ing 75  111.  App.  208. 

The  contents  of  lost  deeds  may  be  proved  by  parol.  Fletcher  v. 
Shepperd,  174  111.  262,  51  N.  E.  212. 

Wills. —  As  to  secondary  evidence  of  the  contents  of  a  will  which 
has  been  destroyed,  see  G.  T.  M.  Mfg.  d  T.  Co.  v.  Gill,  111  111.  541. 

In  order  to  render  a  copy  admissible,  the  loss  of  the  original  must 
be  shown.      Anderson  v.  Jacobson,  66  111.  522. 

The  proper  foundation  must  be  laid  in  order  that  a  copy  of  a  record 
be  admissible.  Hanson  v.  Armstrong,  22  111.  442.  The  record  itself 
may  be  read  by  statute. 

In  possession  of  adverse  party. — Where  a  party  refuses  to  produce 
papers,  secondary  evidence  is  admissible.  Rector  v.  Rector,  3  Gilm. 
105;   Vestor  v.  Poicell,  2  Gilm.  119. 

Where  a  party  will  not  produce  papers,  the  adverse  party  may  give 
parol  proof  of  the  contents  and  the  presumption  will  be  against  him. 
Rector  v.  Rector,  3  Gilm.  105. 

If  a  party  removes  documents  without  the  State,  which  it  is  called 
upon  to  produce,  it  cannot  object  to  secondary  evidence.  Suburban 
R.  R.  Co.  v.  Baultwill,  94  111.  App.  454. 

Letter-press  copies  are  admissible  where  the  adverse  party  will  not 
produce  the  originals.      Berry  v.  Allen,  59  111.  149. 

Where  the  opposite  party  will  not  produce  books  in  evidence,  parol 
evidence  of  their  contents  is  admissible.  Cartier  v.  Troy  L.  Co.,  138 
111.  533. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  373 

Original  public  document. —  The  incorporation  of  a  company  may 
be  proved  in  a  suit  against  stockholders  by  a  copy  of  the  license 
recorded  in  the  books  of  the  company.  Culver  v.  Third  Nat.  Bank, 
64  111.  528. 

Kinds  of  secondary  evidence. —  The  most  satisfactory  kind  of  sec- 
ondary evidence  must  be  produced.  Wilson  v.  South  Park  ComrS., 
70  111.  46. 

If  a  contract  has  been  destroyed,  secondary  evidence  may  be  ad- 
mitted, but  not  a  copy  of  it  taken  from  the  report  of  the  case.  Eoyt 
v.  Shipherd,  70  111.  309. 

The  execution  docket  is  admissible,  the  execution  having  been  lost. 
Ellis  v.  Huff,  29  111.  449;  Dunlap  v.  Berry,  4  Scam.  327. 

As  to  the  admissibility  of  copies  of  deeds  under  1  Star.  &  C.  Annot. 
Stats.  [2d  ed.],  p.  955,  sec.  36,  see  Scott  v.  Bassett,  174  111.  390,  51 
N.  E.  577. 

Parol  evidence  of  the  contents  of  an  instrument  which  has  been 
lost  may  be  offered,  unless  it  appears  that  copies,  or  other  better 
evidence,  exists.  C,  C,  C.  &  St.  L.  R.  R.  Co.  v.  Newlin,  74  111.  App. 
638. 

Where  a  copy  of  a  contract  is  offered,  any  witness  may  testify  that 
it  is  a  copy.      Lombard  v.  Johnson,  76  111.  599. 

In  case  of  lost  execution  a  transcript  from  a  docket  is  admissible. 
Becker  v.  Quigg,  54  111.  390. 

The  contents  of  a  lost  record  of  election  may  be  shown  by  oral 
evidence.      Maxey  v.  Williamson  County,  72  111.  207. 

Proof  of  custom. —  The  contents  of  a  lost  bond  cannot  be  proved 
by  custom.      Jackson  v.  Bry,  3  Brad.  586. 

Abstract  of  title. —  Abstracts  of  title  may  be  admissible.  Heinsen 
v.  Lamb,  117  111.  549,  551;  Russell  v.  Mandell,  73  111.  136. 

A  copy  of  an  abstract  is  not  admissible,  even  though  the  records 
have  been  burnt.  King  v.  Worthington,  73  111.  161;  Compton  v. 
Randolph,  104  111.  555. 

Where  the  record  of  deeds  is  destroyed,  an  abstract  of  title  is 
admissible.      Alvis  v.  Morrison,  63  111.  181. 

In  order  to  prove  a  judgment  by  secondary  evidence,  the  loss  or 
destruction  of  the  record  must  be  shown.  Comisky  v.  Breen,  7  Brad. 
369 ;  Thatcher  v.  Maack,  7  Brad.  635. 

Numerous  documents. —  Chicago,  etc.,  R.  Co.  v.  Wolcott,  141  Ind. 
267. 


374  A  DIGEST  OF  [Pabt  II. 

Collateral  fact. —  Where  a  document  is  merely  a  collateral  or  sub- 
sequent memorial  of  the  fact,  parol  evidence  of  such  fact  may  be 
given.     Wabash  &  Erie  Canal  v.  Reinhart,  22  Ind.  463. 

The  contents  of  papers  collaterally  in  issue  may  be  proved.  Coonrad 
v.  Madden,  126  Ind.  197  j  Carter  v.  Pomeroy,  30  Ind.  438. 

'Objection  to  evidence. —  Objection  to  secondary  evidence  must  be 
made  to  be  available.    Moore  v.  Hubbard,  15  Ind.  App.  84. 

In  public  office. —  The  mere  fact  that  a  document  is  in  a  public 
office  and  cannot  be  removed  does  not  of  itself  allow  the  introduction 
of  parol  evidence.    People  v.  Lambert,  5  Mich.  349. 

New  Jersey. 

Secondary  evidence  is  admitted  if  the  court  is  reasonably  assured 
that  better  evidence  is  not  withheld  or  suppressed.  Clark  v.  Horn- 
beck,   17   N.  J.  Eq.  430. 

Taking  a  receipt  does  not  preclude  other  proof  of  payment.  Berry 
v.  Berry,  2  Harr.  440;   Chambers  v.  Hunt,  2  Zab.  552. 

In  possession  of  adverse  party. —  Copies  of  deeds  admissible  on 
showing  that  the  originals  were  formerly  in  possession  of  the  de- 
fendant's attorney  and  notice  to  produce.  Popino  v.  McAllister,  7 
N.  J.  L.  46. 

Lost  instruments. —  Stafford  v.  Stafford,  1  N.  J.  Eq.  525;  Bent 
V.  Smith,  22  N.  J.  Eq.  560;  Browning  v.  Flanagan,  2  Zub.  567. 

Secondary  evidence  of  contents  of  a  lost  instrument  admissible. 
Whether  such  instrument  is  lost  and  whether  sufficient  search  has 
been  made  for  it  are  preliminary  questions  of  fact  for  the  court. 
Longstreth  v.  Korb,  64  N.  J.  L.  112. 

Secondary  evidence  not  admissible  where  document  is  lost  or  de- 
stroyed through  one's  own  negligence  or  fraud.  Price  v.  Tollman, 
Coxe,  447;  Broadwell  v.  Stiles,  8  N.  J.  L.  58. 

Secondary  evidence  not  admissible  in  favor  of  one  who  voluntarily 
destroyed  the  instrument.  Price  v.  Tollman,  Coxe,  447;  Broadwell 
v.  Stiles,  3  Hal.  58. 

Secondary  evidence  admitted  when  the  destruction  was  by  mis- 
take, though  voluntary.  Wyckoff  v.  Wyckoff,  16  N.  J.  Eq.  401; 
Jones  v.  Knauss,  31  N.  J.  Eq.  609. 

Secondary  evidence  of  a  forged  instrument  that  is  lost  or  without 
•the  control  of  the  State  is  admissible.  Mead  v.  State,  53  N.  J.  L. 
601 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  375 

Secondary  evidence  of  the  contents  of  a  lost  affidavit  admitted  to 
prove  perjury.     Gordon  v.  Mate,  48  N.  J.  L.  611. 

Evidence  that  instrument  cannot  be  found  by  diligent  search 
raises  presumption  of  loss.     Clark  v.  Hornbeck,  17  N.  J.  Eq.  430. 

Proof  of  loss  —  Reasonable  search. — ■  Johnson  v.  Arnwine,  42 
N.  J.  L.  451. 

Instances  where  proof  of  loss  was  unsatisfactory.  Wills  v.  Mc- 
Dole,  2  South.  502;  Sterling  v.  Potts,  2  South.  773;  Fox  v.  Lambson, 
3  Hal.  275;  Smith  v.  Axtell,  1  N.  J.  Eq.  494. 

Instances  where  proof  of  loss  was  sufficient.  Kingwood  v.  Bethle- 
hem, 1  Green,  221;  Watson  v.  Kelty,  1  Harr.  517,  526;  Insurance 
Co.  v.  Woodruff,  26  N".  J.  L.  541 ;  Williamson  v.  Johnson,  5  N.  J.  Eq. 
537,  593,  615. 

Laws  of  New  Jersey. —  The  printed  statute-books  and  pamphlet 
session  laws  are  admissible.  Lawrence  v.  Finch,  17  N.  J.  Eq.  234; 
Condit  v.  Blaclcwell,  19  N.  J.  Eq.  193,  22  N.  J.  Eq.  481;  Ball  v.  Con- 
solidated Co.,  32  N.  J.  L.  102 ;   Uhler  v.  Semple,  20  N.  J.  Eq.  288. 

Laws  of  another  State. —  Laws  of  New  York  provable  by  a  printed 
copy.  Hale  v.  Ross,  Pen.  807.  Contra,  Bennington  Iron  Co.  v. 
Rutherford,  3  Harr.  185. 

Proving  records  in  other  States. —  Chase  v.  Caryl,  57  N.  J.  L.  545. 

Instrument  not  in  issue. —  Where  the  writing  is  only  collateral 
to  the  question  in  issue,  it  need  not  be  produced.  New  Jersey  Zinc 
Co.  v.  Lehigh  Zinc  Co.,  59  N.  J.  L.  189. 

Maryland. 

General  authorities  sustaining  text. —  Young  v.  Mertens,  27  Md. 
114;  Bowler  v.  Cushwa,  27  Md.  354;  Marshall  v.  Haney,  9  Gill,  251; 
Mulliken  v.  Boyce,  1  Gill,  60;  Dunnock  v.  Dunnock,  3  Md.  Ch.  140;  ' 
Morrison  v.  Welty,  18  Md.  169;  Barnum  V.  Bamum,  42  Md.  251. 

A  witness  cannot  state  the  effect  of  the  document,  or  the  result 
of  his  impression  as  to  the  contents,  but  must  give  the  words  or 
their  substance.     Baltimore  v.  War,  77  Md.  593. 

As  against  one  who  has  defaced  or  destroyed  an  instrument,  slight 
evidence  of  its  contents  will  generally  be  sufficient.  Love  v.  Dilly, 
64  Md.  238. 

A  party  was  allowed  to  bring  out  on  cross-examination  the  con- 
tents of  a  paper,  of  the  existence  of  which  he  could  not  have  known 
in  time  to  serve  notice  to  produce  or  to  account  for  its  absence. 
Hume  v.  Pumphrey,  4  Gill,  181. 


376  A  DIGEST  OF  [Pabt  II. 

Payment  of  money  may  be  proved  without  producing  a  receipt 
that  was  given  therefor.      Wyeth  v.   Walzl,  43  Md.  426. 

The  contents  of  a  document  may  be  proved  by  a  copy,  which  the 
adverse  party  has  admitted  to  be  correct  in  another  action.  Crich- 
ton  v.  Smith,  34  Md.  42. 

To  contradict  a  witness,  a  printed  copy  of  a  letter  written  by 
him,  admitted  by  him  to  be  correct,  is  admissible  without  account- 
ing for  the  original,  the  witness  admitting  that  the  original  is  not 
in  his  possession.     Gillespie  v.  State,  92  Md.   171. 

Lost  or  destroyed  documents. —  Secondary  evidence  of  a  document 
is  admissible  only  when  it  is  lost,  destroyed,  or  in  the  possession 
of  the  adverse  party.  Hay  ward  v.  Carroll,  4  H.  &  J.  518;  Weber  v. 
Fickey,  52  Md.  398,  423,  515. 

The  minute-books  of  a  corporation  containing  a  copy  of  an  agree- 
ment are  admissible  if  the  original  is  lost.  Harrison  v.  Morton,  83 
Md.  456. 

Copies  of  the  record  of  a  deed  not  required  by  law  to  be  recorded 
are  not  admissible  unless  the  original  is  lost.  Gittings  V.  Hall, 
1  H.  &  J.  14;  Hum  v.  Soper,  6  H.  &  J.  276. 

The  existence  of  the  document  at  one  time  must  be  established. 
Young  v.  Mackall,  4  Md.  362. 

Preliminary  proof  of  loss. —  Proof  that  a  paper  was  thrown  away 
as  useless  is  enough  to  let  in  secondary  evidence  without  proving 
any  search  for  it.     Wright  v.  State,  88  Md.  436. 

Diligent  search  must  be  made.  See  Gunther  v.  Bennett,  72  Md. 
384. 

It  must  be  proved  that  the  original  once  existed  and  sufficient 
evidence  must  be  introduced  to  raise  the  presumption  of  loss  or 
destruction.  In  case  of  loss,  a  reasonable  search  must  have  been 
made.     Brashears  v.  State,  58  Md.  563. 

Instances  of  insufficient  search.  Basford  v.  Mills,  6  Md.  385; 
Clements  v.  Ruckle,  9  Gill,  326;  Mulliken  v.  Bovce,  1  Gill,  60. 

An  ordinary  letter  to  one  now  dead  may  be  presumed  to  have 
been  destroyed  without  proof  of  search.     Jones  v.  Jones,  45  Md.  144. 

A  more  diligent  search  is  required  in  case  of  important  instru- 
ments not  likely  to  be  lost.  Union  Bank  V.  Gittings,  45  Md.  181; 
Bartlett  v.  Wilbur.  53  Md.  485:   Glenn  v.  Rogers,  3  Md.  312. 

Document  illegible. —  If  records  have  become  illegible  through 
time  or  accident,  secondary  evidence  is  admissible.  Smith  v.  Wil- 
son, 17  Md.  460. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  377 

Possession  of  adverse  party. —  A  copy  of  a  letter  may  be  intro- 
duced when  notice  has  been  given  to  produce  the  original  and  it  is 
not  produced.     Brailsford  v.  Williams,  15  Md.  151. 

Original  in  possession  of  adverse  party  and  his  failure  to  produce. 
Walsh  v.  Gilmore,  3  H.  &  J.  383. 

Refusal  to  produce  after  service  of  notice  admits  secondary  evi- 
dence.    Morrison  v.  Whiteside,  17  Md.  452. 

Pennsylvania. 

Lost  or  destroyed  in  general. —  Gould  v.  Lee,  55  Pa.  99.  Records : 
Bank  v.  Qilson,  U  Pa.  51;  Miltimore  v.  Miltimore,  40  Pa.  151; 
Clark  v.  Trindle,  52  Pa.  492 ;  Appeal  of  McFate,  105  Pa.  323.  Sealed 
instruments:  Edgar's  Lessee  v.  Robinson,  4  Dall.  132;  Paul  v. 
Durborow,  13  S.  &  R.  392;  Schall  v.  Miller,  3  Whart.  250;  Huzzwrd 
v.  Trego,  35  Pa.  9;  Gorgas  v.  Hertz,  150  Pa.  538. 

It  must  be  proved  that  the  lost  document  actually  existed  and  was 
genuine  before  secondary  evidence  of  its  contents  is  admissible. 
Krise  v.  Neason,  6G  Pa.  253. 

Lost  letter.     Stem  v.  Stanton,   184  Pa.  268. 

Secondary  evidence  of  the  contents  of  a  lost  note  is  not  to  be 
excluded  merely  because  the  defendant  produces  what  he  claims  to 
be  the  note  when  its  genuineness  is  denied  by  the  plaintiff.  Helzer 
v.   Helzer,   187   Pa.  243. 

One  who  has  lost  or  destroyed  a  document  through  fraud  or  neg- 
ligence cannot  introduce  secondary  evidence  of  its  contents.  Wallace 
v.  Harmstad,  44  Pa.  492. 

Preliminary  proof  of  loss  and  search. —  Proof  of  loss  held  suffi- 
cient.    Bank  v.  Field,  143  Pa.  473;  Brown  v.  Day,  78  Pa.  129. 

Preliminary  proof  that  instrument  is  lost  is  required.  McCredy 
V.  Schuylkill  Xav.  Co.,  3  Whart.  424;  Parke  v.  Bird,  3  Pa.  360; 
Caufman  v.  Congregation,  6  Binn.  59;  Graff  v.  Railroad  Co.,  31  Pa. 
359 ;  Brown  v.  Day,  78  Pa.  129 ;  Trust  Co.  v.  Rosenagle,  77  Pa.  507. 

A  reasonably  diligent  search  is  required.  Spalding  v.  Bank,  9  Pa. 
28;   Transportation  Co.  v.  Steele.  70  Pa.   188. 

A  less  diligent  search  is  required  in  case  of  unimportant  docu- 
ments that  are  lost.     American  Ins.  Co.  v.  Rosenagle,  77  Pa.  507. 

Search  for  instrument  held  insufficient.  Burr  v.  Kase,  168  Pa. 
81 ;  Fire  Ins.  Co.  v.  Mardorf,  152  Pa.  22 ;  Heller  v.  Peters,  140  Pa. 
648. 


378  A  DIGEST  OF  [Pabt  II. 

That  an  instrument  once  existed  and  is  now  lost  may  be  shown 
by  circumstantial  evidence.     Bright  v.  Allan,  203  Pa.  386. 

Preliminary  proof  of  loss  is  for  the  court.  Flinn  v.  McGonigle, 
9  W.  &  S.  75;  Railroad  Co.  v.  Quick,  61  Pa.  328;  Gorgas  v.  Hertz, 
150  Pa.  538;  Hemphill  v.  McClimans,  24  Pa.  367;  Graff  v.  Railroad 
Co.,  31  Pa.  489. 

Documents  in  possession  of  a  third  party,  see  Morris  v.  Vanderen, 
i^Dall.  64;  Be  Baril  v.  Pardo,  8  Atl.  876. 

In  ha,nds  of  adverse  party. —  Secondary  evidence  of  the  contents 
of  a  document  in  the  hands  of  the  adverse  party  is  not  admissible 
without  showing  notice  to  produce.  Buchanan  v.  Moore,  10  S.  &  R. 
275;  Garland  v.  Cunningham,  37  Pa.  228;  Eilbert  v.  Finkbeiner, 
68  Pa.  243;   Underwriters'  Assn.  v.  George,  97  Pa.  238. 

Out  of  jurisdiction. —  Where  a  document  is  out  of  the  jurisdiction 
in  the  hands  of  a  third  party,  secondary  evidence  is  admissible. 
Otto  v.  Trump,  115  Pa.  425,  430;  Ralph  v.  Brown,  3  W.  &  S.  395; 
McGregor  v.  Montgomery,  4  Pa.  237. 

Numerous  documents. —  Voluminous  documents  likely  to  be  unin- 
telligible to  the  jury  may  be  summed  up  in  a  tabulated  statement 
and  such  statement  admitted  in  evidence.  Com.  v.  Work,  3  Pitts. 
493. 

Not  movable. —  The  contents  of  a  posted  notice  may  be  proved 
by  parol.     Whitesell  v.  Crane,  8  W.  &  S.  369. 

Court  records. —  Secondary  evidence  admitted  where  the  document 
is  a  part  of  or  attached  to  the  record  of  a  court  of  another  State. 
Otto  v.  Trump,  115  Pa.  425. 

Laws  of  other  States. —  Laws  of  a  sister  State  proved  in  same 
way  as  those  of  a  foreign  country.  Ripple  v.  Ripple,  1  Rawle,  386. 
They  may  be  proved  by  a  volume  of  its  laws  printed  by  public 
authority.  Thompson  v.  Musser,  1  Dall.  458;  Kean  v.  Rice,  12 
S.  &  R.  203;  Mullen  v.  Morris,  2  Pa.  85. 

An  attorney  acquainted  with  the  law  of  a  sister  State  is  a  com- 
petent witness  as  to  its  unwritten  law.  Dougherty  v.  Snyder,  15 
S.  &  R.  84. 

Foreign  law  may  be  proved  by  any  one  acquainted  with  it,  though 
not  a  lawyer.     Trust  Co.  v.  Rosenagle,  77  Pa.  507. 

Degrees  in  secondary  evidence. —  The  best  kind  of  evidence  ob- 
tainable is  required.     Stevenson  v.  Hoy,  43  Pa.  191. 

To  prove  a  transaction  of  sixty  years  ago,  it  is  not  necessary  to 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  379 

produce  the  best  evidence  of  the  fact  that  existed  then,  but  only  the 
best  that  exists  now.     Howell  v.  Mellon,  189  Pa.  169. 

Giving  a  receipt  does  not  prevent  the  proving  of  payment  by 
parol.  Heckert  v.  Haine,  6  Binn.  1G;  Ramsey  v.  Johnson,  3  P.  &  W. 
293. 

Statute. —  Secondary  evidence  admissible  when  a  witness  persists 
in  refusing  to  produce  though  served  with  subpoena  duces  tecum  and 
punished.     Pepper  &  Lewis'  Digest  of  Laws,  "  Evidence,"  sec.  7. 


Aeticle  72.* 
rules  as  to  notice  to  produce. 

Secondary  evidence  of  the  contents  of  the  documents 
referred  to  in  Article  71  (a)  may  not  be  given  unless  the 
party  proposing  to  give  such  secondary  evidence  has, 

if  the  original  is  in  the  possession  or  under  the  control  of 
the  adverse  party,  given  him  such  notice  to  produce  it  as 
the  Court  regards  as  reasonably  sufficient  to  enable  it  to  be 
procured  ;26  or  has, 

if  the  original  is  in  the  possession  of  a  stranger  to  the 
action,  served  him  with  a  subpoena  duces  tecum  requiring 
its  production;27 

if  a  stranger  so  served  does  not  produce  the  document, 
and  has  no  lawful  justification  for  refusing  or  omitting  to 
do  so,  his  omission  does  not  entitle  the  party  who  served  him 
with  the  subpoena  to  give  secondary  evidence  of  the  con- 
tents of  the  document.28 

*  See  Note  XXIX. 

26  Dwyer  v.  Collins,  1852,  7  Ex.  at  p.  648. 

27  Kexcton  v.  Chaplin,  1850,  10  C.  B.  356. 

28  R.  v.  Llanfaethly,  1853,  2  E.  &  B.  940. 


380  A  DIGEST  OF  [Pabt  II. 

Such  notice  is  not  required  in  order  to  render  secondary 
evidence  admissible  in  any  of  the  following  cases — 

(1)  When  the  document  to  be  proved  is  itself  a  notice ; 

(2)  When  the  action  is  founded  upon  the  assumption 
that  the  document  is  in  the  possession  or  power  of  the  ad- 
verse party  and  requires  its  production  ;29 

(3)  When  it  appears  or  is  proved  that  the  adverse  party 
has  obtained  possession  of  the  original  from  a  person  sub- 
poenaed to  produce  it  ;30 

(4)  When  the  adverse  party  or  his  agent  has  the  original 
in  court.31 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Taylor  on  Evidence  ( Chamberlayne's  9th  ed. ) , 
sec.  440  et  seq.;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  561. 

Notice  to  produce. —  Abbott  v.  Wood,  22  Me.  541;  Inhabitants  of 
Belfast  v.  Inhabitants  of  Washington,  46  Me.  460;  Webster  v.  Clarkr 
30  N.  H.  245;  Curtis  v.  Ingham,  2  Vt.  287;  Murray  v.  Mattison,  67 
Vt.  553,  32  Atl.  479;  Baker  v.  Pike,  33  Me.  213;  People  v.  Walker,  38 
Mich.  159;  Dunbar  v.  U.  S.,  156  U.  S.  185;  Mayor  of  Baltimore  v. 
War,  77  Md.  593,  603;  Filbert  v.  Finkbeiner,  68  Pa.  St.  243;  Trelever 
v.  No.  Pac.  R.  Co.,  89  Wis.  598 ;  Shepard  v.  Giddings,  22  Conn.  282 ; 
Draper  v.  Hatfield,  124  Mass.  53;  Roberts  v.  Spencer,  123  Mass.  397; 
Bourne  v.  Buffington,  125  Mass.  481 ;  Com.  v.  Sullivan,  156  Mass. 
229;  Com.  v.  Emery,  2  Gray   (Mass.),  80;  Bourne  v.  Boston,  2  Gray 

29  Hoio  v.  Hall,  1811,  14  Ea.  274.  In  an  action  on  a  bond,  no  no- 
tice to  produce  the  bond  is  required.  See  other  illustrations  in  2  Ph. 
Ev.  273:  Taylor,  s.  452. 

30  Leeds  v.  Cook,  1803,  4  Esp.  256. 

31  Formerly  doubted,  see  2  Ph.  Ev.  278,  but  so  held  in  Dwyer  v. 
Collins,  1852,  7  Ex.  639. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  381 

(Mass.),  494;  Brackett  v.  Evans,  1  Cush.  (Mass.)  79;  Harris  v. 
Whitcomb,  4  Gray   (Mass.),  433. 

If  the  paper  is  in  court,  a  verbal  notice  to  produce  is  sufficient. 
Overlook  v.  Hall,  81  Me.  348. 

Suit  on  assumption  that  adverse  party  has  document. —  Dana  v. 
Conant,  30  Vt.  246,  257 ;  Morrill  v.  B.  &  M.  R.  R.  Co.,  58  N.  H.  68 ; 
State  v.  Hayberry,  48  Me.  218;  Railway  Co.  v.  Cronin,  38  0.  St.  122. 
Compare  People  v.  Swetland,  77  Mich.  53. 

Unlawful  refusal  of  stranger  to  produce. —  Bull  v.  Loveland,  10 
Pick.    (Mass.)    14. 

Document  itself  a  notice. —  Eagle  Bank  v.  Chapin,  3  Pick.  (Mass.) 
180;  Quinley  v.  Atkins,  9  Gray  (Mass.),  370;  Michigan,  etc.,  Land 
Co.  v.  Republic  Township,  65  Mich.  628 ;  Pensacola  R.  Co.  v.  Brayton, 
34  Fla.  471;  Getkin  v.  Walker,  59  Cal.  502;  Morrow  v.  Com.,  48  Pa. 
St.  305 ;  Central  Bank  v.  Allen,  16  Me.  41. 

In  possession  of  third  person. —  Brandt  v.  Klein,  17  Johns.  335; 
Lane  v.  Cole,  12  Barb.  680. 

A  subpoena  duces  tecum  may  be  served  on  a  party.  Shelp  v.  Morri- 
son, 13  Hun,  110.  If  a  corporation,  by  serving  the  proper  officer. 
N.  Y.  Code  Civ.  Pro.,  sec.  8GS. 

Adverse  party  has  obtained  document  from  person  subpoenaed. — 
Bonesteel  v.  Lynde,  8  How.  Pr.  226,  352. 

Where  the  document  was  taken  with  intent  to  destroy,  no  notice 
need  be  given  such  party  to  produce  the  portion  taken.  Scott  v. 
Rentz,  5  Sand.  572. 

Adverse  party  has  the  original  in  court.—  McPherson  v.  Rath- 
bone,  7  Wend.  216,  219;  Brandt  v.  Klein,  17  Johns.  335. 

Requiring  production. —  The  courts  may  require  parties  to  produce 
books  or  writings.     Hurd's  Rev.  Stat.,  chap.  51,  sec.  9,  p.  860. 

Or  papers.    Field  v.  Zemansky,  9  Brad.  479. 

As  to  requiring  parties  to  produce  writings,  see  Allison  v.  Perry, 
130  111.  915:  Trucsdale  Mfg.  Co.  v.  Hoyle,  39  111.  App.  532,  538; 
Rigdon  v.  Conley,  31  111.  App.  630,  634,  635;  People  v.  West.  M. 
M.  I.  Co.,  40  111.  App.  429. 

Subpoena. —  A  witness  who  is  unable  to  produce  books  or  papers 
required  by  a  subpoena  duces  tecum  is  excused  by  his  inability,  if 
after  a  diligent  search  he  is  unable  to  find  them,  and  does  not  know 
where  they  are.     Lamb  v.  Lippincott,  115  Mich.  611. 


382  A  DIGEST  OF  [Pabt  II. 

New  Jersey. 

Notice  to  produce. —  Secondary  evidence  not  admissible  without 
showing  a  notice  to  produce.     Ford  v.  Munson,  1  South.  93. 

Notice  required  even  though  the  document  is  in  court.  Watkins 
v.  Pintard,  Coxe,  378. 

Notice  to  defendant's  attorney  held  sufficient.  Den.  v.  McAllister, 
2  Hal.  46. 

The  document  must  be  produced  in  evidence  if  relevant,  but  only 
during  the  one  trial  for  which  notice  to  produce  was  given.  Ellison 
V.  Cruser,  40  N.  J.  L.  444. 

Time  of  notice. —  Notice  on  the  morning  of  trial  is  sufficient  if 
the  document  be  near  at  hand.  Board  of  Justices  v.  Fennimore,  1 
N.  J.  L.  242. 

Subpcena  duces  tecum. —  It  is  proper  to  issue  a  subpoena  duces 
tecum  to  a  party  to  the  suit.  Murray  v.  Elston,  23  N.  J.  Eq.  212; 
Wills  v.  M'Dole,  2  South.  501. 

One  is  not  obliged  to  produce  a  will  in  evidence,  though  an  ad- 
journment was  taken  to  examine  it.     State  v.  Lyon,  Coxe,  403,  412. 

Maryland. 

Notice  to  produce. —  Mayor  of  Baltimore  v.  War,  77  Md.  593,  603. 

Notice  to  produce  a  document  in  the  hands  of  the  adverse  party 
is  required  before  one  may  introduce  evidence  of  its  contents.  Ken- 
nedy v.  Foioke,  5  H.  &  J.  63. 

Notice  to  produce  is  not  required  if  the  adverse  party  admits  that 
the  document  is  not  in  existence  or  not  in  his  possession.  Union 
Banking  Co.  v.  Oittings,  45  Md.  181. 

No  notice  to  produce  a  document  is  necessary  if  it  was  executed 
in  duplicate  and  the  other  copy  is  at  hand.  Totten  v.  Bucy,  57  Md. 
446. 

Document  itself  a  notice. —  Notice  to  produce  a  document  itself 
a  notice  is  not  necessary.     Atxoell  v.  Grant,  11  Md.  101. 

In  hands  of  third  person. —  Evidence  of  the  contents  of  a  power 
of  attorney  in  the  hands  of  a  third  party  is  not  admissible  without 
proof  of  loss  or  the  issuance  of  a  subpcena  duces  tecum.  Rusk  V. 
Sowerwine,  3  H.  &  J.  97. 

Time  of  notice. —  Notice  to  produce  must  be  given  in  such  time 
as  to  afford  the  party  a  reasonable  time  to  comply.  Ananias 
Divers  v.  Fulton,  8  G.  &  J.  202. 


Chap.  IX.]  THE  LAW  OF  EVIDENCE.  383 

A  notice  at  the  beginning  of  the  trial  is  not  in  due  time  unless 
the  document  is  in  court  or  near  at  hand.  Glenn  v.  Rogers,  3  Md. 
312;  Atxcell  v.  Miller,  6  Md.  10. 

Two  days'  notice  held  sufficient.    Divers  v.  Fulton,  8  G.  &  J.  202. 

Pennsylvania. 

Notice  to  produce. —  Eilbert  v.  Finkbeiner,  68  Pa.  243. 

Party  having  document,  absent  from  State.  Garland  V.  Gunning- 
ham,  37  Pa.  228. 

Notice  is  necessary  though  the  document  is  in  the  courtroom. 
Milliken  v.  Barr,  7  Pa.  23. 

Bringing  the  action  is  itself  notice  where  its  object  is  the  pos- 
session of  the  instrument  in  question.  McClean  v.  Herlzog,  6  S.  & 
R.  154. 

Parol  evidence  of  the  contents  of  a  document  in  the  hands  of  the 
adverse  party  is  inadmissible  until  there  has  been  a  notice  to  pro- 
duce. Buchanan  v.  Moore,  10  S.  &  R.  275;  Garland  v.  Cunningham, 
37  Pa.  228. 

When  notice  to  produce  the  written  evidence  of  a  contract  has 
been  disregarded,  parol  testimony  is  admissible.  Strawbridge  V. 
Telegraph  Co.,  195  Pa.  118. 

Document  itself  a  notice. —  Notice  to  produce  a  document  itself 
a  notice  is  unnecessary.  Morrow  v.  Com.,  48  Pa.  305 ;  Gaskell  v. 
Morris,  7  W.  &  S.  32. 

Statute. —  As  to  compelling  the  production  of  documents,  and  the 
giving  of  secondary  evidence,  see  Pepper  &  Lewis'  Digest  of  Laws, 
"Evidence,"  sees.  6-0. 


384  A  DIGEST  OF  [Pabt  II. 


CHAPTEK  X. 

PROOF  OF  PUBLIC  DOCUMENTS. 

Article  73. 

proof  of  public  documents. 

When  a  statement  made  in  any  public  document,  register, 
or  record,  judicial  or  otherwise,  or  in  any  pleading  or  depo- 
sition kept  therewith  is  in  issue,  or  is  relevant  to  the  issue 
in  any  proceeding,  the  fact  that  that  statement  is  contained 
in  that  document,  may  be  proved  in  any  of  the  ways  men- 
tioned in  this  chapter.1 

AMERICAN  NOTE. 
General. 

A  paper  which  is  identified  by  a  stipulation  does  not  thus  become 
evidence.    Hankinson  v.  Giles,  29  How.  Pr.  478,  17  Abb.  Pr.  251. 

Until  a  document  is  read  or  its  reading  be  waived,  it  does  not  be- 
come evidence,  even  though  proved.     Clapp  v.  Wilson,  5  Den.  285. 

See  also  Reynolds  v.  Schweinfus,  27  Ohio  St.  311;  Chapman  v. 
Seely,  8  Ohio  Circ.  Ct.  179. 

A  coroner's  verdict  may  be  admissible.  Fein  v.  Covenant  Mutual 
Benefit  Assn.,  60  111.  App.  274;  Grand  Lodge,  etc.,  v.  Wieting,  68  111. 
App.  125;  Pyle  v.  Pyle,  158  111.  289  (to  show  suicide)  ;  N.  G.  Loge  v. 
Jurg,  65  111.  App.  313   (in  another  State). 

The  dismissal  of  a  case  may  be  shown  by  the  record.  Consolidated 
C.  Co.  v.  Scheffer,  135  111.  217. 

The  record  of  a  judgment  of  a  court  not  of  record  is  not  admissible. 
Eopperl  v.  Nagy,  37  111.  App.  27. 


i  See  articles  36  &  90. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  385 

Article  74. 
production  of  document  itself. 

The  contents  of  any  public  document  whatever  may  be 

proved  by  producing  the    document  itself   for    inspection 

from  proper  custody,  and  identifying  it  as  being  what  it 

professes  to  be. 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  Bees.  479-484, 
501;  1  Wharton  on  Evidence,  sec.  635;  State  v.  Lynde,  77  Me.  66; 
Evanston  v.  Ounn,  99  U.  S.  660;  Taylor  v.  Adams,  115  111.  570; 
Phelps  v.  Hunt,  43  Conn.  194.  But  see  Donnellan  v.  Hardy,  57  Ind. 
393 ;  Frost  v.  Frost,  21  S.  C.  501 ;  Richards'  Appeal,  122  Pa.  St.  547. 

As  to  proving  records  of  other  States,  see  U.  S.  Rev.  Stats.,  sees. 
905,  906. 

As  to  proving  foreign  records,  see  Watson  v.  Walker,  23  N.  H. 
471,  496;  Spalding  v.   Vincent,  24  Vt.  501,  504. 

A  record  may  be  proved  by  its  mere  production,  if  such  be  had, 
as  well  as  by  a  copy.     Gray  v.  Davis,  27  Conn.  453. 

Upon  a  writ  of  error  from  the  judgment  of  a  justice  of  the  peace, 
each  party  produced  a  certified  copy  of  the  record  below;  but  the 
copies  did  not  agree.  Held,  that  the  court  might  send  for  the 
original  record.    Allin  v.  Hisoock,  1  Root  (Conn.),  88. 

Papers  ir  another  case  in  order  to  be  admissible  must  be  shown  to 
be  originals  or  transcripts.     Hughes  v.  Lehan,  1  Ohio  Circ.  Ct.  9. 

A  plea  of  discharge  in  bankruptcy  is  provable  by  the  certificate 
alone.    Strader  v.  Lloyd,  1  Western  Law  Journal,  396. 

A  book  of  township  records  must  be  identified.  State  v.  Wallahan, 
Tappan,  80. 

The  proper  evidence  of  a  patent  is  the  document  itself,  authenti- 
cated by  the  certificate  and  seal  of  the  commissioner.  A  single  cer- 
tificate that  a  paper  is  "  a  true  copy  from  the  records  of  that  office 
of  the  specifications  "  is  not  admissible.  Davis  v.  Gray,  17  Ohio  St. 
330. 

25 


386  A  DIGEST  OF  [Part  II. 

Original  executions  are  competent  evidence;  exemplified  copies 
are  received;  are  competent  as  public  papers  kept  in  the  clerk's 
office.    Bank  of  U.  S.  v.  White,  Wright,  51. 

A  public  record  may  be  admissible,  even  though  some  pages  are 
missing.     People  v.  Board,  etc.,  21  111.  App.  271. 

A  book  of  ordinances  is  evidence.     Lindsay  v.  Chicago,  115  111.  121. 

A  certified  copy  of  village  ordinances,  in  pamphlet  form,  is  admis- 
sible.     C.  &  E.  I.  Ry.  Co.  v.  Beaver,  96  111.  App.  558. 

An  incumbrance  may  be  shown  by  the  record.  Conway  v.  Case,  22 
111.  129;  Stow  v.  People,  25  111.  82. 

As  to  proof  of  judgments  in  a  county  court,  see  Hurd's  Rev.  Stat., 
chap.  3,  sec.  65,  p.  115. 

Certificates  of  redemption  from  tax  sales  are  admissible.  Kraft 
v.  Auw,  192  111.  184,  61  N.  E.  842. 

Corporate  existence  may  be  shown  by  proving  the  charter  and  the 
exercise  of  the  franchise.  P.  &  P.  N.  Ry.  Co.  v.  P.  &  F.  Ry.  Co.,  105 
111.  110. 

Corporate  records  duly  authenticated  are  admissible.  Illinois  Con- 
ference v.  Plagge,  177  111.  431,  53  N.  E.  76,  affirming  76  111.  App.  468. 

Original  records,  shown  to  have  come  from  the  legal  custodian 
properly  authenticated,  are  admissible,  as  are  also  certified  tran- 
scripts, lies  v.  Watson,  76  Ind.  359,  360;  Hall  v.  Bishop,  78  Ind. 
370,  372;  Reed  v.  Whitton,  78  Ind.  579,  585;  Anderson  v.  Ackerman, 
88  Ind.  481,  492;  Baldwin  v.  Threlkeld,  8  Ind.  App.  312,  321. 

Must  be  identified. —  Tyres  v.  Kennedy,  126  Ind.  523,  526;  Kusler 
v.  Crofoot,  78  Ind.  579,  600   (foreign  judgment). 

As  to  authenticating  statutes  of  other  States,  see  Ansley  v.  Meikle, 
81  Ind.  260,  262;  Anderson  v.  Ackerman,  88  Ind.  481,  490  (transcript 
of  judgment)  ;  Marks  v.  Orth,  121  Ind.  10,  14. 

Assessment  lists. —  Painter  v.  Hall,  75  Ind.  208,  213;  Lefever  v. 
Johnson,  79  Ind.  554,  556;  Crume,  Dunn  d  Co.  v.  Rauh,  100  Ind.  247, 
253;  Burket  v.  Pheister,  114  Ind.  503,  504;  Cincinnati,  etc.,  R.  R.  Co. 
v.  McDougall,  108  Ind.  179,  182;  Towns  v.  Smith,  115  Ind.  480,  483; 
Standard  Oil  Co.  v.  Bretz,  98  Ind.  231,  235. 

Federal  land  records. —  Burns'  Stat.,  sec.  1881. 

New  Jersey. 
Making  the  record  of  an  instrument  admissible  does  not  destroy 
the  admissibility  of  the  original,  though  not  recorded.     Doremus  v. 
Smith,  4  N.  J.  L.  142. 


Chap.  X.]  THE   LAW   OF  EVIDENCE.  387 

The  enrolled  statute  of  a  State  conclusive  proof  of  its  enactment 
and  contents.     Cable  Co.  v.  Attorney-General,  46  N.  J.  Eq.  270. 

A  judgment  cannot  be  proved  by  parol.  Lomerson  v.  Hoffman,  4 
Zab.  674,  25  N.  J.  L.  625;  Tice  v.  Beeves,  30  N.  J.  L.  314. 

Original  deeds  as  evidence. —  G.  S.  1895,  "Conveyances,"  31. 

Maryland. 

Authorities. —  In  the  same  court  where  a  record  is  lodged,  the 
record  itself  is  evidence;  the  original  papers  may  be  laid  before  the 
court.  Morrill  v.  Gelston,  34  Md.  413;  Lerian  v.  Bohr,  66  Md.  95;, 
Bolder  v.  State,  8  G.  &  J.  359;  Preston  v.  Evans,  56  Md.  476. 

Under  statute  the  original  papers  of  another  suit  are  not  ad- 
missible unless  they  are  accompanied  by  a  certified  copy  of  the 
docket  entries  in  the  case.     Miller  v.  Matthews,  87  Md.  464. 

Though  land  records  are  not  ordinarily  admissible,  they  may  be 
introduced  to  impeach  the  correctness  of  a  certified  copy.  Evans 
V.  Horan,  52  Md.   602. 

The  record  of  another  court  can  be  proved  only  by  a  transcript 
and  not  by  the  original  entries.  Jones  v.  Jones,  45  Md.  144;  Gold- 
smith v.  Kilbourn,  46  Md.  289.      (But  see  statute.) 

Bank-books,  when  relevant,  may  be  themselves  produced,  or  ex- 
tracts taken  from  them.     Winder  v.  Diffenderfer,  2  Bland,  166. 

Pennsylvania. 

Authorities. —  Richards'  Appeal,  122  Pa.  547. 

One  offering  a  document  in  evidence  must  offer  it  just  as  it  is; 
and  if  there  is  anything  on  it  to  explain,  the  burden  is  on  him  to 
do  so.     Cary  v.  Gary,  189  Pa.  65. 

Where  a  certified  copy  of  a  record  is  admissible,  the  original  is 
equally  so.  White  v.  Fitler,  2  Pa.  Law  J.  302;  Lewis  v.  Bradford, 
10  Watts,  67 ;  Miller  v.  Hale,  26  Pa.  432. 

A  certified  copy  is  no  better  evidence  than  the  original.  Boggs  V. 
Miles,  8  S.  &  R.  407. 

Official  papers  taken  from  the  files  without  authority  are  not 
admissible  unless  authenticated  by  the  officer  in  whose  custody  they 
are.  Devlmg  v.  Williamson,  9  Watts,  311;  Hockenbury  v.  Carlisle, 
1  W.  &  S.  282. 

The  original  books  of  the  county  commissioners'  office  are  ad- 
missible.    Miller  v.  Hale,  26  Pa.  432.     And  they  may  be  identified 


388  A  DIGEST  OF  [Pabt  11. 

by  any  one  who  knows  them  to  be  such.  Cuttle  v.  Brockway,  24  Pa. 
145. 

The  original  records  of  another  court  are  admissible  when  pro- 
duced from  proper  custody.     Garrigues  v.  Harris,  17  Pa.  St.  Rep.  344. 

Justice's  docket  is  admissible  to  prove  its  contents.  Cope  v. 
Risk,  21  Pa.  59;  Dean  v.  Connelly,  6  Pa.  239;  Knapp  v.  Miller,  133 
Pa.  275. 

The  docket  of  a  justice  of  the  peace  is  admissible  though  obtained 
without  his  authority.    Dennison  v.  Otis,  2  Rawle,  9. 


Article  75.* 
examined  copies. 

The  contents  of  any  public  document  whatever  may  in  all 
«ases  be  proved  by  an  examined  copy. 

An  examined  copy  is  a  copy  proved  by  oral  evidence  to 
"have  been  examined  with  the  original  and  to  correspond 
therewith.  The  examination  may  be  made  either  by  one 
person  reading  both  the  original  and  the  copy,  or  by  two 
persons,  one  reading  the  original  and  the  other  the  copy, 
and  it  is  not  necessary  (except  in  peerage  cases2)  that  each 
should  alternately  read  both.3 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  91,  485, 
501,  508;  1  Wharton  on  Evidence,  sec.  94;  Amer.  Life  Ins.  Co.  v. 
Rosenagle,  11  Pa.  St.  507;  Moore  v.  Gaus  Mfg.  Co.,  113  Mo.  98 
(called  a  "  sworn  "  copy)  ;  State  v.  Clothier,  30  N.  J.  L.  351  (called 
a  "sworn"  copy)  ;  Lasater  v.  Van  Hook,  11  Tex.  650;   Whitehouse 

*  See  Note  XXX.,  also  Doe  v.  Ross,  1840,  7  M.  &  W.  at  p.  106. 

2  Slave  Peerage  Case,  1835,  5  C.  &  F.  at  p.  42. 

3  2  Ph.  Ev.  200,  231;  Taylor,  s.  1545;  R.  N.  P.  98. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  389 

v.  Beckford,  9  Fost.  (X.  H.)  471,  480;  State  v.  Loughlin,  66  X.  H. 
266 ;  State  v.  Lynde,  77  Me.  561 ;  State  v.  Spaulding,  60  Vt.  228. 

Method   of   comparison. —  Lynde  v.  </t«2d,  3  Day    (Conn.),  500. 

Examined  copies  are  often  called  "  sworn  copies."  Hubbell  v. 
Meigs,  50  N.  Y.  480,  492. 

A  sworn  copy  of  a  lost  instrument  is  of  as  high  an  order  of  proof 
as  the  instrument  itself,  and  cannot  be  varied  by  parol  evidence. 
Reed  v.  United  States  Express  Co.,  48  X.  Y.  462. 

Examined  copy. —  A  nonjudicial  record  of  another  State  may  be 
proved  by  a  sworn  copy.  Hall  v.  Bishop,  78  Ind.  370,  371.  See, 
also,  Lake  Erie,  etc.,  R.  R.  Co.  v.  Bowker,  9  Ind.  App.  428,  431. 

A  sworn  copy  of  a  record  which  has  been  lost  or  destroyed  is  ad- 
missible.    Jones  v.  Levi,  72  Ind.  586. 

New  Jersey. 

Authorities. — State  v.  Clothier,  30  X.  J.  L.  351  (called  a  "sworn" 
copy). 

Sworn  copies  of  the  records  of  a  county  in  another  State.  Condit 
V.  Black-well,  19  N.  J.  Eq.  193. 

Statutes  of  other  States  must  be  proved  by  exemplified  copies,  or 
at  least  by  sworn  copies.     Van  Buskirk  v.  Mulock,  18  X.  J.  L.  184. 

A  deposition  taken  in  another  suit  must  be  proved  by  a  certified 
or  sworn  copy  of  the  original.  Railroad  Co.  v.  Stewart,  19  X.  J.  Eq. 
343. 

A  sworn  copy  of  a  municipal  record  is  admissible.  Fcnnimore 
v.  Clothier,  30  X.  J.  L.  351. 

Sworn  copy  of  the  records  of  a  township  meeting  are  better  evi- 
dence to  prove  what  officers  were  elected  than  a  certified  copy  of  a 
list  filed  with  the  county  clerk.     In  re  Pricket t,  20  N.  J.  L.  134. 

Sworn  copy  of  the  town-book  is  the  best  evidence  of  the  election 
of  officers.     Myers  v.  Clark,  41   X.  J.  L.  486. 

Printed  copies  of  laws.—  G.  S.  1895,  "Evidence,"  22,  23,  65; 
"Statutes,"   38. 

Maryland. 

Examined  copies  of  assessor's  books  are  admissible.  Hughes  V. 
Jones,  2  Md.  178. 

Printed  copies. —  Printed  books  to  prove  statutes  and  resolutions. 
P.  G.  L.  1888,  art.  35,  sees.  47-49. 

Copy  of  the  articles  of  a  vessel,  sworn  to  by  the  captain. 
P.  G.  L.  1888,  art.  84,  sec.  8. 


390  A  DIGEST  OF  [Paet  II. 

Pennsylvania. 

Authorities. —  Life  Ins.  Co.  v.  Kosenagle,  77  Pa.  507;  Krise  v. 
Reason,  GO  Pa.  253. 

A  copy  must  be  proved  by  some  one  who  has  compared  it  with  the 
original.  McGinniss  v.  Saicyer,  63  Pa.  259;  Trust  Co.  v.  Rosenagle, 
77  Pa.  507. 

A  sworn  copy  admitted  after  proof  of  the  existence  and  loss  of 
an  instrument.     Blackslone  v.  White,  41  Pa.  330. 

Sworn  copy  of  a  justice's  docket  admissible.  Welsh  v.  Crawford, 
14  S.  &  R.  440;  Hibbs  v.  Blair,  14  Pa.  413. 

Official  papers  cannot  be  verified  and  proved  by  one  having  no 
connection  with  the  office.     Hockenbury  v.  Carlisle,  1  W.  &  S.  282. 

An  unsworn  copy  of  an  unofficial  survey  not  admitted.  Kirk- 
patrick  v.  Vanhorn,  32  Pa.  131. 

Article  76. 
general  records  of  the  realm. 

Any  record  under  the  charge  and  superintendence  of  the 
Master  of  the  Rolls  for  the  time  being,  may  be  proved  by 
a  copy  certified  as  a  true  and  authentic  copy  by  the  deputy 
keeper  of  the  records  or  one  of  the  assistant  record  keepers, 
and  purporting  to  be  sealed  or  stamped  with  the  seal  of  the 
Record  Office.4 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence   (15th  ed.),  sec.  499  et  seq. 

As  to  authentication  of  copies  of  the  public  records  of  the  Federal 
government,  see  U.  S.  Rev.  Stat.,  sees.  882-898;  Ballew  v.  U.  S.,  160 
U.  S.  191. 

Acts  of  Congress  are  admissible.     Lane  v.  Bommehnann,  17  111.  95. 

The  record  of  a  case  is  admissible  to  show  that  suit  was  brought. 
Fusselman  v.  Worthington,  14  111.  135. 

Corporation  records  are  admissible  to  show  the  existence  of  an 
amendment  to  its  charter.      Dows  v.  Naper,  91  111.  44. 

Statutes  of  other  States  are  admissible  under  Rev.  Stat.,  chap.  51, 
sec.  10.  Grand  Pass  Shooting  Club  v.  Crosby,  181  111.  266,  54  N.  E. 
913. 


*1  &  2  Vict.  c.  94,  ss.  1,  12,  13. 


Chap.  X.]  THE  LAW   OF  EVIDENCE.  391 


Article  77.* 
exemplifications. 

An  exemplification  is  a  copy  of  a  record  set  out  either 
under  the  Great  Seal  or  under  the  Seal  of  a  Court. 

A  copy  made  by  an  officer  of  the  Court,  bound  by  law  to 
make  it,  is  equivalent  to  an  exemplification,  though  it  is 
sometimes  called  an  office  copy. 

An  exemplification  is  equivalent  to  the  original  document 
-exemplified. 

AMERICAN   NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sees.  95,  105,  107;  1  Green- 
leaf  on  Evidence  (15th  ed.),  sees.  488,  501;  Taylor  on  Evidence 
(Chamberlayne's  9th  ed.),  p.  1179  et  seq.;  Traction  Co.  v.  Board  of 
Works,  57  N.  J.  L.  316. 

Copies  of  any  records  made  by  a  public  officer  are  sometimes 
called  "  office  copies."  Elwell  v.  Cunningham,  74  Me.  127.  Or  "  cer- 
tified copies."  Gragg  v.  Learned,  100  Mass.  167;  Samuels  v.  Bar- 
rowscale,  104  Mass.  207. 

The  term  "exemplification"  is  also  applied  to  foreign  records. 
Watson  v.  Walker,  23  N.  H.  471;  Spaulding  v.  Vincent,  24  Vt.  501. 

As  to  exemplification  under  act  of  Congress,  see  U.  S.  Rev.  Stats., 
sees.  905,  906. 

The  term  "exemplification"  is  also  applied  to  foreign  records  as 
well  as  domestic,  and  these  records  may  be  judicial  or  nonjudicial 
in  character.  Lincoln  v.  Battelle,  6  Wend.  475;  Lazier  v.  Wcstcott, 
26  N.  Y.  146;  Miller  v.  Livingston,  1  Cai.  349;  Quag  v.  Eagle  Fire 
Insurance  Co.,  Anth.  N.  P.  237. 

A  record  of  a  court  certified  by  the  clerk  of  court,  the  county  clerk, 
and  the  presiding  judge  is  sufficient,  in  the  absence  of  specific  defects 
pleaded,  under  the  act  of  Congress  (1  Stat.  122),  which  provides  that 

*  See  Note  XXXI. 


392  A  DIGEST  OF  [Part  II. 

the  record  of  foreign  courts  shall  be  certified  by  the  judge,  chief  jus- 
tice or  presiding  magistrate,  although  not  attested  by  the  secretary  of 
state  under  the  great  seal,  as  Code,  sec.  952  requires.  Talamo  v. 
Ermano,  62  N.  Y.  Supp.  240. 

Letters  of  administration. —  Jenkins  v.  Robinson,  4  Wend.  436; 
Westcott  v.  Cady,  5  Johns.  Ch.  334. 


New  Jersey. 

Authorities. —  Traction  Co.  v.  Board  of  Works,  57  1ST.  J.  L.  316. 

Exemplified  copy  of  a  marriage  certificate,  without  any  proof  of 
the  latter's  genuineness,  is  not  admissible.  Rooney  v.  Rooney,  54 
N.  J.  Eq.  231. 

An  exemplified  copy  of  the  record  of  a  mortgage  in  New  York 
given  the  same  faith  and  credit  as  it  would  have  in  New  York. 
Chase  v.  Caryl,  57  N.  J.  L.  545. 

Under  a  statute  requiring  the  dockets  of  a  deceased  justice  to  be. 
deposited  with  the  county  clerk,  the  latter  is  competent  to  exemplify 
transcripts  therefrom.     Woodruff  v.    Woodruff,  4  N.  J.  L.  375. 

Foreign  statutes  may  be  proved  by  exemplified  copies.  Van  Bus- 
kirk  v.  Unlock,  18  N.  J.  L.  184. 

As  to  manner  of  proving  an  incorporation  under  the  laws  of  an- 
other State  sec  Stone  v.  State,  Spen.  401. 

As  to  what  is  sufficient  exemplification  of  the  record  of  a  court 
of  another  State,  see  Gavii  v.  Snowhill,  20  X.  J.  L.  70. 

Exemplified  copy  of  an  act  of  the  Legislature,  under  the  great 
seal,  is  conclusive  of  the  existence  and  contents  of  the  act.  Pang- 
horn  v.  Young,  32  X.  J.  L.  20.  . 

Exemplification  of  colonial  deeds.—  G.  S.  1895,  "  Convevances," 
118. 

Maryland. 

Example  of  the  sufficient  exemplification  of  the  record  of  a  court 
of  Martinique.     Dr  Sobry  v.  De  Laistre,  2  H.  &  J.   191. 

An  exemplified  copy  of  the  record  of  a  deed  is  admissible  only 
when  the  record  shows  that  the  original  was  duly  executed.  Budd 
v.   Brooke,   3  Gill.   198. 

The  exemplification  of  a  record  not  authorized  by  law  to  be  kept 
is  not  admissible   except  as  secondary  evidence.     Wilson  v.   Inloes, 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  393 

6  Gill,  121;  Gittings  v.  Hall,  1  H.  &  J.  14;  Hum  v.  Boper,  6  H.  &J. 
276. 

A  copy  of  a  record  of  an  instrument  is  not  admissible  when  the 
instrument  was  improperly  admitted  to  record.  Coale  v.  Harring- 
ton, 7  H.  &  J.   147. 

Exemplifications  of  debts  of  record  in  other  States  and  nations. 
P.  G.  L.  1888,  art.  35,  sec.  36. 

Pennsylvania. 

Authorities. —  Exemplification  of  a  will  admitted.  Weston  v. 
Stanmers,  1  Dall.  2 ;  Morris  v.  Vanderen,  1  Dall.  64 ;  Criswell  V. 
Alt  emus,  7   Watts,  565. 

Exemplification  of  the  record  of  the  Orphans'  Court  in  regard  to 
the  partition  of  real  estate  is  not  admissible  unless  it  contain  the 
whole  record.  Hampton  v.  Speckenagle,  9  S.  &  R.  212;  Christine  V. 
Whitehill,  16  S.  &  R.  98;  Coal  Co.  v.  Quick,  68  Pa.  189. 

Exemplified  copy  of  a  mortgage  is  admissible  without  proving  loss 
of  the  original.     Curry  v.  Raymond,  28  Pa.  144. 

Exemplified  copy  of  a  lost  deed  admitted.  Scott  v.  Leather,  3 
Yeates,  184. 

An  exemplification  of  the  record  of  a  deed  is  not  admissible  where 
the  acknowledgment  was  insufficient.     Telott  v.  Lewis,  102  Pa.  326. 

An  exemplified  copy  of  a  record  was  admitted  even  though  the 
record  itself  was  made  after  the  suit  was  commenced.  Sioatik  v 
Phillips,   113  Pa.  482. 

Exemplifications  of  court  records. —  Pepper  &  Lewis'  Digest  of 
Laws,  "  Court  Records,"  sec.  3. 

Exemplification  of  a  docket  entry  not  admissible  to  prove  a  lis 
pendens.     Ingham  v.  Craig,  1  P.  &  W.  389. 

A  duly  certified  exemplification  of  the  record  of  bankruptcy  pro- 
ceedings, schedules,  etc.,  is  admissible.  Bonesteel  v.  Sullivan,  104 
Pa.  9. 

What  is  sufficient  exemplification  of  a  record  under  act  if 
Congress.  Erb  v.  Scott,  14  Pa.  20;  Van  Storch  v.  Griffin,  71  Pa. 
240. 

When  exemplifications  shall  be  evidence. —  Pepper  &  Lewis'  Digest 
of  Laws,  "  Evidence,"  sees.  10-42. 


394  A.  DIGEST  OF  [Pabt  II. 

Article  78.* 

copies  equivalent  to  exemplifications. 

A  copy  made  by  an  officer  of  the  Court,  who  is  authorised 
to  make  it  by  a  rule  of  Court,  but  not  required  by  law  to 
make  it,  is  regarded  as  equivalent  to  an  exemplification  in 
the  same  Cause  and  Court,  but  in  other  Causes  or  Courts  it 
is  not  admissible  unless  it  can  be  proved  as  an  examined 
copy. 

AMERICAN  NOTE. 
Authorities. —  1  Wharton  on  Evidence,  sees.  104,  105;  1  Greenleaf 
on  Evidence  (15th  ed.),  sec.  507;  Traction  Co.  v.  Board  of  Works,  57 
N.  J.  L.  316. 

Maryland. 

Judgments. —  Full  exemplified  copy  of  the  record  of  a  judgment 
not  required.     Short  copies.     P.  G.  L.  1888,  art.  35,  sec.  59. 

Article  79. 

certified  copies. 

It  is  provided  by  many  statutes  that  various  certificates, 
official  and  public  documents,  documents  and  proceedings 
of  corporations,  and  of  joint  stock  and  other  companies,  and 
certified  copies  of  documents,  bye-laws,  entries  in  registers 
and  other  books,  shall  be  receivable  in  evidence  of  certain 
particulars  in  Courts  of  Justice,  provided  they  are  respec- 
tively authenticated  in  the  manner  prescribed  by  such  stat- 
utes.5 


*  See  Note  XXXI. 
58  &  9  Vict.  c.  113,  preamble.    Many  such  statutes  are  specified  in 
Taylor,  bb.  1601  n.;  1611  n.    See,  too,  R.  N.  P.  98,  99,  and  the  Appen- 
dix to  this  work. 


Chap.X.]  THE  LAW  OF  EVIDENCE.  395 

Whenever,  by  virtue  of  any  such  provision,  any  such 
certificate  or  certified  copy  as  aforesaid  is  receivable  in 
proof  of  any  particular  in  any  Court  of  Justice,  it  is  admis- 
sible as  evidence  if  it  purports  to  be  authenticated  in  the 
manner  prescribed  by  law  without  proof  of  any  stamp, 
seal,  or  signature  required  for  its  authentication  or  of  the 
official  character  of  the  person  who  appears  to  have  signed 
it.6 

Whenever  any  book  or  other  document  is  of  such  a  pub- 
lic nature  as  to  be  admissible  in  evidence  on  its  mere  pro- 
duction from  the  proper  custody,  and  no  statute  exists 
which  renders  its  contents  provable  by  means  of  a  copy, 
any  copy  thereof  or  extract  therefrom  is  admissible  in 
proof  of  its  contents,7  provided  it  purport  to  be  signed  and 
certified  as  a  true  copy  or  extract  by  the  officer  to  whose 
custody  the  original  is  intrusted.  Every  such  officer  must 
furnish  such  certified  copy  or  extract  to  any  person  apply- 
ing at  a  reasonable  time  for  the  same,  upon  payment  of  a 

Glbid.  s.  1.  I  believe  the  above  to  be  the  effect  of  the  provision, 
but  the  language  is  greatly  condensed.  Some  words  at  the  end  of  the 
section  are  regarded  as  unmeaning  by  several  text  writers.  See  e.  g., 
Roscoe's  N.  P.,  p.  100;  2  Ph.  Ev.  241;  Taylor,  7th  ed.  s.  7,  note  1. 
Mr.  Taylor  says  that  the  concluding  words  of  the  section  were  intro- 
duced into  the  Act  while  passing  through  the  House  of  Commons. 
He  adds,  they  appear  to  have  been  copied  from  1  &  2  Vict.  c.  94,  s.  13 
(see  art.  76),  "by  some  honourable  member  who  did  not  know  dis- 
tinctly what  he-was  about."    They  certainly  add  nothing  to  the  sense. 

7  The  words  "  provided  it  be  proved  to  be  an  examined  copy  or 
extract  or,"  occur  in  the  Act,  but  are  here  omitted  because  their 
effect  is  given  in  Article  75. 


396  A  DIGEST  OF  [Part  II. 

reasonable  sum  for  the  same,  not  exceeding  fourpence  for 
every  folio  of  ninety  words.8 

AMERICAN  NOTE. 
General. 

Authorities. —  2  Wharton  on  Evidence,  sees.  1313,  1314;  Enfield  r. 
Ellington,  67  Conn.  459. 

Certified  copies,  to  be  admissible,  must  be  authorized  by  law. 
Jay  v.  East  Livermore,  56  Me.  107;  ^Vayland  v.  Ware,  109  Mass.  248; 
People  v.  Lee,  112  111.  113;  Frances  v.  Newark,  58  N.  J.  L.  522.  And 
also  be  properly  authenticated.  Keichline  v.  Keichline,  54  Pa.  75; 
Galvin  v.  Palmer,  113  Cal.  46;  Bixby  v.  Carskadden,  55  la.  533; 
Kingman  v.  Coioles,  103  Mass.  283. 

In  some  States  such  copies  may  be  used,  the  custom  from  time 
immemorial  justifying  their  admission.  Chamberlain  v.  Ball,  15 
Gray  (Mass.),  352. 

As  to  proof  of  foreign  records,  see  Butrick  v.  Allen,  8  Mass.  273, 
5  Am.  Dec.  105. 

Federal  statutes.—  U.  S.  Rev.  Stat.,  sees.  882-900,  905,  906,  908. 

As  to  their  construction,  see  1  Greenleaf  on  Evidence  (15th  ed. ), 
sees.  504-506. 

A  copy  of  the  record  of  an  examination  in  bankruptcy  proceedings 
lacking  the  certificate  of  the  judge  required  by  United  States  Re- 
vised Statutes,  section  905,  is  inadmissible  in  evidence.  Smith  v. 
Brocket t,  69  Conn.  500. 

First  paragraph  of  text. —  St.  John  v.  Croel,  5  Hill,  573;  Haddock 
v.  Kelsey,  3  Barb.  100;  Devoy  v.  New  York,  35  Barb.  264,  22  How.  Pr. 
226;  Clute  v.  Ennerich,  21  Hun,  122;  Redfort  v.  Snow,  46  Hun,  370. 

Certified  copies,  to  be  admissible,  must  be  authorized  by  law. 
People  v.  Lee,  112  111.  113. 

Ordinances  may  be  proved  by  certified  copies.  Lindsay  v.  Chicago, 
115  111.  121;  T.  II.  d  I.  R.  R.  Co.  v.  Voelker,  31  111.  App.  314,  318. 

An  ordinnnro.  in  the  absence  of  charter  provision,  is  to  be  proved 
as  at  common  law.      C.  &  A.  Ry.  Co.  v.  Engle,  76  111.  317. 

Copies  of  patents  from  the  State  are  admissible.  Jackson  v.  Ber- 
ner,  48  111.  203;  Hurd's  Rev.  Stat.,  chap.  51,  sec.  22,  p.  861. 


8  14  &  15  Vict.  c.  99,  s.  14. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  397 

The  official  character  of  the  clerk  may  be  proved  by  the  certificate 
of  the  Secretary  of  State.     Chambers  v.  People,  4  Scam.  352. 

In  Illinois  certified  copies  of  court  records  may  be  under  the 
hand  of  the  clerk,  or  the  judge,  if  there  be  no  clerk.  Hurd's  Rev. 
Stat.,  chap.  51,  sec.   13,  p.  800. 

Certified  copies  of  municipal  records  and  ordinances  are  admissible. 
Hurd's  Rev.  Stat.,  chap.  51,  sec.  14,  p.  860.  As  to  the  construction  of 
this  provision,  see  Alton  v.  Hartford  Fire  Ins.  Co.,  72  111.  328. 

A  certified  copy  of  a  charter  is  competent  evidence.  Q.  W.  Tel. 
*Co.  v.  Hears,  154  111.  437. 

Certified  copies  of  corporation  records  are  admissible  in  Illinois. 
Hurd's  Rev.  Stat.,  chap.  51,  sec.  17,  p.    860. 

Certified  copies  of  the  records  of  justices  are  admissible.  Hurd's 
Rev.  Stat.,  chap.  51,  sec.  17,  p.  861. 

Certified  copies  of  wills  are  admissible.  Neceivander  v.  Neceivan- 
der,  151  111.  158. 

A  transcript  of  the  record  is  admissible  if  certified  by  the  deputy 
clerk.     Schott  v.  Youree,  142  111.  233. 

A  certificate  of  the  Secretary  of  State  to  the  effect  that  an  instru- 
ment is  not  recorded  is  admissible.  Cross  v.  Pinckneyville  Mill  Co., 
17  111.  54. 

The  certificate  of  the  clerk  to  canvass  evidence  that  a  county  seat 
has  been  changed  is  admissible.  People  v.  Warfield,  20  111.  159. 
Compare  Prettyman  v.  Supervisors,  19  111.  406. 

If  recorded  in  the  wrong  county,  a  certified  copy  is  inadmissible. 
Adams  v.  Buhler,  131  Ind.  66. 

In  order  to  be  admissible  copies  of  public  records  or  papers  are 
only  admissible  when  the  records  or  papers  are  kept  according  to 
law.      Fry  v.  State,  27  Ind.  348. 

A  certified  copy  of  an  unauthorized  record  is  incompetent.  Starnes 
v.  Allen,  151  Ind.  108. 

As  to  the  form  of  certificate,  see  Anderson  v.  Ackerman,  88  Ind.  481 ; 
Bradford  v.  Russell,  79  Ind.  64;  Gale  v.  Parks,  58  Ind.  117;  Kess- 
ling  v.  Truitt,  30  Ind.  306;  Painter  v.  Hall,  75  Ind.  208;  Tull  v. 
David,  27  Ind.  377;  Vail  v.  Rinehart,  105  Ind.  6;  Wiseman  v.  Lynn, 
39  Ind.  250;  Yeager  v.  Wright,  112  Ind.  230. 

Mode  of  authentication. —  Where  the  statute  prescribes  the  mode 
of  authenticating  public  instruments,  no  other  authentication  will  be 
sufficient.  Painter  v.  Hall,  75  Ind.  208,  214;  Board,  etc.  v.  Ham- 
mond, 83  Ind.  453,  459. 


398  A  DIGEST  OF  [Pabt  II. 

Judgments. —  Judgments  of  the  Superior  Court  may  be  proved  by 
certified  transcripts.  Donnellan  v.  Hardy,  57  Ind.  393;  Anderson  v. 
Ackerman,  88  Ind.  481,  491;  Vail  v.  Rinehart,  105  Ind.  6,  12;  Bailey 
v.  Martin,  119  Ind.  103,  108;  Yeager  v.  Wright,  112  Ind.  230,  235 
(justice  records) . 

Recorded  deed. —  Benefiel  v.  Aughe,  93  Ind.  401,  406;  Mills  v. 
Snypes,  10  Ind.  App.  19;  Midland  Ry.  Co.  v.  State  ex  rel.,  11  Ind. 
App.  433;  Adams  v.  Buhler,  131  Ind.  66. 

Tax  duplicate. — A  copy  of  a  tax  duplicate  from  the  office  of  the 
county  auditor  is  admissible.  Standard  Co.  v.  Bretz,  98  Ind.  231; 
Painter  v.  Hall,  75  Ind.  208,  213;  Midland  Ry.  Co.  v.  State,  11  Ind. 
App.  433;  McSweeney  v.  McMillen,  96  Ind.  298,  301. 

Bankruptcy  records. —  Bradford  v.  Russell,  79  Ind.  64,  73. 

Transcript  of  survey  and  field  notes. —  Bonewits  v.  Wygant,  75 
Ind.  41,  43. 

Treasurer's  settlement  sheets. —  Board,  etc.  v.  Benson,  83  Ind.  469, 
473. 

Records  of  Adjutant-General's  office. —  Board  v.  May,  67  Ind.  562. 

Records  of  other  States. —  As  to  authentication  of  records  of  other 
States,  see  Ault  v.  Zehering,  38  Ind.  429;  Dragoo  v.  Graham,  17  Ind. 
427;  English  V.  Smith,  26  Ind.  445. 

Certified  copies. —  A  judgment  may  be  proved  by  a  certified  copy. 
Norris  v.  Mersereau,  74  Mich.  687,  42  N.  W.  153. 

A  certified  copy  of  part  of  the  journal  entries  in  a  criminal  case 
is  admissible.      McLeod  v.  Crosby,  87  N.  W.  883. 

A  recorded  deed  is  admissible  without  preliminary  proof.  Lacey 
v.  Davis,  4  Mich.  140. 

In  order  to  be  admissible  without  preliminary  proof,  a  deed  must 
have  been  properly  admitted  to  record  {e.  g.,  must  have  been  ac- 
knowledged).    People  v.  Marion,  29  Mich.  31. 

A  deed  of  land  outside  the  State  does  not  prove  itself.  Gualt  r. 
Van  Zile,  37  Mich.  22. 

As  to  copies  of  records  of  deeds  of  other  States,  see  Messenger  v, 
Peter,  8  Det.  L.  N.  867,  88  N.  W.  209. 

As  to  the  form  of  certificate  under  the  statute,  see  Huntoon  v. 
O'Brien,  79  Mich.  227,  44  N.  W.  601. 

New  Jersey. 

The  terms  of  an  order  of  court  can  be  proved  only  by  the  record 
or  by  a  duly  certified  copy.     Michener  v.  Lloyd,  16  N.  J.  Eq.  38. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  399 

To  prove  the  election  of  town  officers,  there  must  be  produced  a 
certified  copy  of  all  the  proceedings  of  the  town  meeting  when  the 
election  took  place.    State  v.  Clark,  41  N.  J.  L.  486. 

Recorded  wills.—  G.  S.  1895,  "  Orphans'  Courts,"  253. 

When  certified  copy  of  a  will  made  in  Great  Britain  is  admissible. 
McCarthy  V.  McCarthy,  57  N.  J.  Eq.  587. 

Making  certified  copies  admissible  evidence  does  not  render  the 
originals  inadmissible.     Oram  v.  Young,  3  Harr.  57. 

Authority  of  officer. —  Certified  copies,  to  be  admissible,  must  be 
authorized  by  law.  Francis  v.  Newark,  58  N.  J.  L.  522;  Traction 
Co.  v.  Board  of  Works,  57  N.  J.  L.  313;  Stokes  v.  Middleton,  28 
N.  J.  L.   32. 

Copies  certified  by  an  officer  merely  intrusted  with  certain  records, 
but  not  authorized  to  make  copies,  are  inadmissible.  Colder  v. 
Cake,  24  N.  J.  L.  516. 

The  clerk  of  the  Supreme  Court  may  certify  the  day  on  which  a 
judgment  was  entered,  but  not  the  hour.  Hunt  v.  Swayze,  55 
N.  J.  L.  33. 

Official  certificate. —  A  certificate  from  the  Secretary  of  State  is 
not  evidence  in  the  absence  of  statute.  Traction  Co.  v.  Board  of 
Public  Works,  57  N.  J.  L.  313. 

Certificate  of  naturalization  is  sufficient  proof  of  citizenship. 
Chandler  v.  Wartman,  6  N.  J.  L.  J.  301. 

A  public  officer's  certificate  that  a  certain  fact  appears  of  record 
is  not  sufficient;  the  record  must  be  certified.  Francis  v.  Newark, 
58  N.  J.  L.  522. 

Certificates  of  persons  other  than  officials  are  not  evidence.  Ander- 
son v.  Barnes,  Coxe,  203. 

Certified  copies  of  deeds. —  G.  S.  1895,  "  Conveyances,"  29. 

A  certified  copy  of  the  record  of  a  deed  was  admitted  without 
any  notice  to  produce  the  original.  Doremus  v.  Smith,  4  N.  J.  L. 
142. 

Certified  copies  of  recorded  deeds  are  evidence.  Railroad  Co.  v. 
Suydam,  2  Harr.   160. 

A  certified  copy  of  the  record  of  a  deed  is  not  admissible  when 
it  was  not  recorded  within  ten  years  from  its  execution.  Jones  v. 
Crowley,  57  N.  J.  L.  222. 

Mortgages.— G.  S.  1895,  "  Mortgages,"  56,  39. 

A  transcript  of  a  mortgage  record  of  another  State  is  admissible 
if  it  would  be  in  such  other  State.     Chase  v.  Caryl,  57  N.  J.  L.  545. 


400  A.  DIGEST  OF  [Pabt  II. 

Assignments  of  judgments. —  G.  S.   1895,  "  Judgments,"   19. 

Justice's  docket. —  The  transcript  of  a  justice's  docket  is  admissi- 
ble.    French  v.  till  reeve,  18  N.  J.  L.  147. 

The  transcript  of  a  justice's  docket  is  not  admissible  to  prove 
facts  not  authorized  to  be  stated  therein.  Hunt  v.  Boylan,  6  N.  J.  L. 
211. 

The  transcript  of  a  justice's  docket  may  be  certified  by  the  clerk. 
Woodruff  v.  Woodruff,  1  South.  375. 

Certified  copies  of  laws. —  G.  S.  1895,  "  Secretary  of  State,"  8. 

Copies  of  records  of  boards  of  health. —  G.  S.  1895,  "  Evidence," 
60-62. 

Certified  copies  of  official  bonds. —  G.  S.  1895,  "Municipal  Corpo- 
rations," 6. 

Maryland. 

Authorities. —  A  certified  copy  of  the  record  of  a  deed  is  admis- 
sible even  though  the  record  be  near  at  hand.  Preston  v.  Evans,  56 
Md.  476. 

A  certified  copy  of  a  record  is  not  admissible  unless  the  record- 
ing was  required  by  law.  Cheney  v.  Watlcins,  1  H.  &  J.  527;  Con- 
nelly v.  Bowie,  6  H.  &  J.  141 ;  Coale  v.  Harrington,  7  H.  &  J.  147 ; 
Burgess  v.  Lloyd,  7  Md.  178;  Miles  v.  Knott,  12  G.  &  J.  442. 

A  certified  copy  of  a  paper  filed  in  the  Navy  Department  was  ad- 
mitted.    Maurice  v.  Worden,  54  Md.  233. 

Certified  copy  of  a  will  admitted.  Raborg  v.  Hammond,  2  H.  &  G. 
42. 

Certified  copy  of  an  official  bond  part  of  the  record  of  a  court. 
Shipley  v.  Fox,  69  Md.  572. 

The  regular  entries  of  a  foreign  notary  public  are  to  be  considr 
ered  as  records,  and  a  copy  under  the  hand  and  seal  of  the  notary 
is  admissible.     Brydcn  v.  Taylor,  2  H.  &  J.  396. 

If  the  law  requires  a  certain  instrument  to  be  recorded,  a  cer- 
tified copy  of  the  record  is  prima  facie  evidence  of  all  facts  neces- 
sary to  the  validity  of  the  original.  Warner  v.  Hardy,  6  Md.  525; 
Craufurd  v.  State  6  H.  &  J.  231;  McCauley  v.  State,  21  Md.  556. 

Official  certificates. —  The  Governor's  certificate  of  an  act  within 
his  authority  is  .admissible.      Hanvood  v.  Marshall,  9  Md.  83. 

Governor's  certificate. —  Certificate  of  the  Governor  as  to  the  au- 
thority of  commissioners.    P.  G.  L.  1888.  art.  18,  sec.  6. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  401 

Court  records. —  The  record  of  another  court  can  be  proved  only 
by  a  transcript  and  not  by  the  original  entries.  Jones  v.  Jones,  45 
Md.  144;  Goldsmith  v.  Kilbourti,  46  Md.  289.      (But  see  statute.) 

Certified  copies  of  the  records  of  courts  of  law  and  equity  ;md  of 
the  register  of  wills  are  admissible.     Morrill  v.  Gelston,  34  Md.  413. 

A  conviction  may  be  proved  by  a  transcript  of  the  record.  Ma- 
guire  v.  State,  47  Md.  485. 

Manner  of  authentication. —  A  certificate  of  the  clerk  of  a  court 
of  a  sister  State  that  the  transcript  is  correct  is  sufficient  authenti- 
cation.    Case  v.  McCee,  8  Md.  9. 

A  judgment  is  sufficiently  authenticated  by  the  words  "  True 
copy,  test "  followed  by  the  signature  of  the  clerk  with  his  seal. 
May  field  v.  Kilgour,  31   Md.  240. 

Authority  of  officer  to  certify.—  A  certified  copy  is  not  admissible 
unless  certified  by  the  officer  authorized  by  law  to  do  so.  Schnert- 
zell  v.  Young,  3  H.  &  McH.  502. 

Certified  copies  of  recorded  deeds  and  other  instruments. —  P.  G.  L. 
1888,  art.  35,  sec.  38. 

Lost  deeds,  patents,  certificates,  etc. —  P.  G.  L.  1888,  art.  35,  sees. 
51-60. 

By-laws  of  corporations. —  P.  G.  L.   1888,  art.  23,  sec.  4. 

Certificates  of  incorporation. —  P.  G.  L.   1888,  art.  23,  sec.  46. 

Registration  and  poll-books.— P.  G.  L.  1888,  art.  33,  sec.  2  4. 

Unrecorded  judgments. —  P.  G.  L.  18S8,  art.  17,  sec.  22. 

Record  of  conviction. —  Conviction  of  a  crime  may  be  proved  by 
the  certificate  of  the  clerk  under  seal  of  the  court,  without  produc- 
ing the  record.     P.  G.  L.   1888,  art.  35,  sec.  5. 

Evidence  to  prove  the  execution  of  instruments  not  recorded  in 
other  States.     P.  G.  L.   1888,  art.  35,  sec.  39. 

Pennsylvania. 

Certified  copies  as  evidence. —  Pepper  &  Lewis'  Digest  of  Laws, 
"  Evidence,"  sees.   10-42. 

Certified  copy  not  admissible  unless  the  original  would  be. 
Penn  v.  Hartman,  2  Dall.  230. 

A  certified  copy  of  detached  parts  of  a  record  is  not  admissible. 
Susquehanna,  etc.,  R.  &  Coal  Co.  V.  Quick,  68  Pa.  189. 

26 


402  A  DIGEST  OF  [Pabt  II. 

Certified  copies  of  a  map  of  Philadelphia  on  file  with  the  Sur- 
veyor-General are  admissible.  Com.  v.  Alburger,  1  Whart.  469; 
Buird  v,   Rice,   03   Pa.   480. 

Certified  copies  of  records  in  the  office  of  Secretary  of  State  are 
admissible  whenever  the  originals  would  be.  Northumberland  Co. 
v.  Zimmerman,  75  Pa.  20. 

A  certified  copy  of  the  proceedings  of  organization  of  a  corpora- 
tion in  another  State  admitted  to  show  the  corporation's  existence. 
Hilliard  v.  Enders,  196  Pa.  587. 

Certified  copy  of  the  record  of  another  State.  Clark  v.  Depew,  25 
Pa.  509. 

Court  records. —  Certified  copies  of  the  records  of  foreign  courts. 
In  re  Gautier  Steel  Co.,  2  Pa.  Co.  Ct.  399;  Pearson's  Estate,  46  Leg. 
Int.   16. 

The  cause  of  action  in  a  foreign  judgment  may  be  proved  only  by 
a  certified  copy  of  the  record.     Otto  v.  Trump,  115  Pa.  425. 

A  certified  copy  of  bankruptcy  proceedings  is  admissible.  Berg- 
haus  v.  Alter,  5  Pa.  507. 

A  transcript  of  a  judgment  of  a  justice  court  filed  elsewhere  is 
not  competent  evidence  while  the  primary  evidence  remains  in  the 
justice  court.  O'Donnel  v.  Seybert,  13  S.  &  P.  54.  But  see  Eibbs 
v.  Blair,  14  Pa.  413;   Magee  v.  Scott,  32  Pa.  539. 

Land  records. —  Certified  copies  of  land-office  records  are  admissi- 
ble to  show  title.  Anderson  v.  Keim,  10  Watts,  251 ;  Grant  v. 
Levan,  4  Pa.  393;  Oliphant  v.  Ferren,  1  Watts,  57;  Fox  v.  Lyon, 
27  Pa.  9. 

Certified  copies  of  records  of  deeds.  Carkhaff  v.  Anderson,  3 
Binn.  4. 

Authentication. —  Certified  copies,  to  be  admissible,  must  be  au- 
thorized by  law,  and  also  be  properly  authenticated.  Keichline  v. 
Krichline,  54  Pa.   75. 

Certified  copy  of  a  record  by  one  who  is  both  judge  and  clerk  of 
an  inferior  court.     Ohw  v.  Hinchman,  27  Pa.  479. 

The  certificate  of  a  deputy  is  the  certificate  of  his  superior. 
Grant  v.  Lcran.  4  Pa.  393. 

Official  certificates. —  A  certificate  from  the  Surveyor-General  is  ad- 
missible to  prove  the  appointment  of  a  deputy  surveyor.  Vast- 
binder  v.  Wager,  6  Pa.  339. 

An  official  certificate  is  not  admissible  when  not  authorized  by 
statute.     Garwood  v.  Dennis,  4  Binn.  314. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  403 

Deeds  and  mortgages. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Deeds 
and  Mortgages,"'  sec.  162. 

Marriage  record. —  Pepper  &  Lewis'  Digest  of  Laws,  "Marriage," 
sec.  14. 

Article  80. 

documents  admissible  throughout  the  queen's 
dominions. 

If  by  any  law  in  force  for  the  time  being  any  document 
is  admissible  in  evidence  of  any  particular  either  in  Courts 
of  Justice  in  England  and  Wales,  or  in  Courts  of  Justice  in 
Ireland,  without  proof  of  the  seal,  or  stamp,  or  signature 
authenticating  the  same,  or  of  the  judicial  or  official  char- 
acter of  the  person  appearing  to  have  signed  the  same,  that 
document  is  also  admissible  in  evidence  to  the  same  extent 
and  for  the  same  purpose,  without  such  proof  as  aforesaid, 
in  any  Court  or  before  any  judge  in  any  part  of  the  Queen's 
dominions  except  Scotland.9 

Article  81. 
queen's  printers'  copies. 

The  contents  of  Acts  of  Parliament,  not  being  public 
Acts,  may  be  proved  by  copies  thereof  purporting  to  be 
printed  by  the  Queen's  printers ; 

9  Consolidates  14  &  15  Vict.  c.  99,  ss.  9,  10,  11,  19.  Sect.  9  provides 
that  documents  admissible  in  England  shall  be  admissible  in  Ireland: 
sect.  10  is  the  converse  of  9;  sect.  11  enacts  that  documents  admissible 
in  either  shall  be  admissible  in  the  "  British  Colonies;  "  and  sect.  1» 
defines  the  British  Colonies  as  including  India,  the  Channel  Islands, 
the  Isle  of  Man,  and  "'  all  other  possessions  "  of  the  British  Crown,, 
wheresoever  and  whatsoever.  This  cannot  mean  to  include  Scotland, 
though  the  literal  sense  of  the  words  would  perhaps  extend  to  it. 


404  A  DIGEST  OF  [Part  II. 

The  journals  of  either  House  of  Parliament ;  and 

Royal  proclamations, 
may  be  proved  by  copies  thereof  purporting  to  be  printed 
by  the  printers  to  the  Crown  or  by  the  printers  to  either 
House  of  Parliament.10 

Article  82. 
proof  of  irish  statutes. 

The  copy  of  the  statutes  of  the  kingdom  of  Ireland  en- 
acted by  the  Parliament  of  the  same  prior  to  the  union  of 
the  kingdoms  of  Great  Britain  and  Ireland,  and  printed 
and  published  by  the  printer  duly  authorised  by  King 
George  III.  or  any  of  his  predecessors,  is  conclusive  evi- 
dence of  the  contents  of  such  statutes.11 


Article  83. 
proclamations,  orders  in  council,  etc. 

The  contents  of  any  proclamation,  order,  or  regulation 
issued  at  any  time  by  Her  Majesty  or  by  the  Privy  Council, 
and  of  any  proclamation,  order,  or  regulation  issued  at  any 
time  by  or  under  the  authority  of  any  such  department  of 
the    Government    or  officer    as  is  mentioned    in  the    first 

io  S  &  9  Vict.   c.  113,  9.  3.     Is  there  any  difference  between  the 
Queen's  printers  and  the  printers  to  the  Crown? 
n  41  Geo.  III.  c.  90,  s.  9. 


Chap.  X.] 


THE  LAW  OF  EVIDENCE. 


405 


column  of  the  note12  hereto,  may  be  proved  in  all  or  any  of 
the  modes  hereinafter  mentioned;  that  is  to  say — 

(1)  By  the  production  of  a  copy  of  the  Gazette  purport- 
ing to  contain  such  proclamation,  order,  or  regulation : 


12 


Column   1. 


Name  of  Department  or  Officer. 


The  Commissioners  of  the  Treas- 
ury. 

The  Commissioners  for  executing 
the  Office  of  Lord  High  Ad- 
miral. 


Secretaries  of  State. 

Committee  of  Privy  Council  for 
Trade. 


The  Local  Government  Board 
(which  takes  the  place  of  the 
Poor  Law  Board,  inter  alios). 


Column  2. 


Names   of   Certifying   Officers* 


Any  Commissioner,  Secretary,  or 
Assistant  Secretary  of  the 
Treasury. 

Any  of  the  Commissioners  for 
executing  the  Office  of  Lord 
High  Admiral  or  either  of  the 
Secretaries  to  the  said  Com- 
missioners. 

Any  Secretary  or  under-Secre- 
tary  of  State. 

Any  Member  of  the  Committee  of 
Privy  Council  for  trade  or  any 
Secretary  or  Assistant  Secre- 
tary of  the  said  Committee. 

The  President  or  an  ex-officio 
member  of  the  Board ;  or  any 
Secretary  or  Assistant  Secre- 
tary of  the  Board  (34  &  35 
Vict.  c.  70,  s.  5). 


[Schedule  to  31  &  32  Vict.  c.  37.] 


The  Postmaster  General. 


The  Board  of  Agriculture. 


Any  Secretary  or  Assistant  Sec- 
retary of  the  Post  Office  (33 
&  34  Vict.  c.  79,  s.  21). 

The  President  or  any  member  of 
the  Board,  or  the  Secretary  of 
the  Board,  or  any  person  au- 
thorised by  the  President  to 
act  on  his  behalf  (58  Vict.  c. 
9,  b.  1). 


406  A  DIGEST  OF  [Paet  II. 

(2)  By  the  production  of  a  copy  of  such  proclamation, 
order,  or  regulation  purporting  to  be  printed  by  the  Govern- 
ment printer,  or,  where  the  question  arises  in  a  Court  in 
any  British  colony  or  possession,  of  a  copy  purporting  to  be 
printed  under  the  authority  of  the  legislature  of  such  Brit- 
ish colony  or  possession : 

(3)  By  the  production,  in  the  case  of  any  proclamation, 
order,  or  regulation  issued  by  Her  Majesty  or  by  the  Privy 
Council,  of  a  copy  or  extract  purporting  to  be  certified  to 
be  true  by  the  Clerk  of  the  Privy  Council  or  by  any  one  of 
the  Lords  or  others  of  the  Privy  Council,  and,  in  the  case 
of  any  proclamation,  order,  or  regulation  issued  by  or  under 
the  authority  of  any  of  the  said  departments  or  officers, 
by  the  production  of  a  copy  or  extract  purporting  to  be  cer- 
tified to  be  true  by  the  person  or  persons  specified  in  the 
second  column  of  the  said  note  in  connection  with  such  de- 
partment or  officer. 

Any  copy  or  extract  made  under  this  provision  may  be  in 
print  or  in  writing,  or  partly  in  print  and  partly  in  writing. 

Xo  proof  is  required  of  the  handwriting  or  official  posi- 
tion of  any  person  certifying,  in  pursuance  of  this  pro- 
vision, to  the  truth  of  any  copy  of  or  extract  from  any  proc- 
lamation, order  or  regulation.13 

Subject  to  any  law  that  may  be  from  time  to  time  made 
by  the  legislature  of  any  British  Colony  or  possession,  this 
provision  is  in  force  in  every  such  colony  and  possession.14 

Where  any  enactment,  whether  passed  before  or  after 
June,  1882,  provides  that  a  copy  of  any  Act  of  Parliament, 

«  31  &  32  Vict.  c.  37,  s.  2.  u  31  &  32  Vict.  c.  37,  3.  3. 


Chap.  X.]  THE  LAW  OF  EVIDENCE.  407 

proclamation,  order,  regulation,  rule,  warrant,  circular, 
list,  gazette,  or  document  shall  be  conclusive  evidence,  or  be 
evidence,  or  have  any  other  effect  when  purporting  to  be 
printed  by  the  Government  printer,  or  the  Queen's  printer, 
or  a  printer  authorised  by  Her  Majesty,  or  otherwise  under 
Her  Majesty's  authority,  whatever  may  be  the  precise  ex- 
pression used,  such  copy  shall  also  be  conclusive  evidence, 
or  evidence,  or  have  the  said  effect,  as  the  case  may  be,  if 
it  purports  to  be  printed  under  the  superintendence  or  au- 
thority of  Her  Majesty's  Stationery  Office.15 

Article  84. 
foreign  and  colonial  acts  of  state,  judgments,  etc. 

All  proclamations,  treaties,  and  other  acts  of  state  of  any 
foreign  state,  or  of  any  British  colony,  and  all  judgments, 
decrees,  orders,  and  other  judicial  proceedings  of  any 
Court  of  Justice  in  any  foreign  state  or  in  any  British  col- 
ony, and  all  affidavits,  pleadings,  and  other  legal  docu- 
ments filed  or  deposited  in  any  such  Court,  may  be  proved 
either  by  examined  copies  or  by  copies  authenticated  as 
hereinafter  mentioned;  that  is  to  say — 

If  the  document  sought  to  be  proved  be  a  proclamation, 
treaty,  or  other  act  of  state,  the  authenticated  copy  to  be 
admissible  in  evidence  must  purport  to  be  sealed  with  the 
seal  of  the  foreign  state  or  British  possession  to  which  the 
original  document  belongs ; 

IB  45  Vict.  c.  9,  s.  2,  Documentary  Evidence  Act,  1882.     Sect.  4  ex- 
tends the  Act  of  1868  to  Ireland. 


408  A  DIGEST  OF  [Paet  II. 

And  if  the  document  sought  to  be  proved  be  a  judgment, 
decree,  order,  or  other  judicial  proceeding  of  any  foreign 
Court,  in  any  British  possession,  or  an  affidavit,  pleading, 
or  other  legal  document  filed  or  deposited  in  any  such 
Court,  the  authenticated  copy  to  be  admissible  in  evidence 
must  purport  either  to  be  sealed  with  the  seal  of  the  foreign 
or  other  Court  to  which  the  original  document  belongs,  or, 
in  the  event  of  such  Court  having  no  seal,  to  be  signed  by 
the  judge,  or,  if  there  be  more  than  one  judge,  by  any  one 
of  the  judges  of  the  said  Court,  and  such  judge  must  attach 
to  his  signature  a  statement  in  writing  on  the  said  copy  that 
the  court  whereof  he  is  judge  has  no  seal ; 

If  any  of  the  aforesaid  authenticated  copies  purports  to 
be  sealed  or  signed  as  hereinbefore  mentioned,  it  is  admis- 
sible in  evidence  in  every  case  in  which  the  original  docu- 
ment could  have  been  received  in  evidence,  without  any 
proof  of  the  seal  where  a  seal  is  necessary,  or  of  the  signa- 
ture, or  of  the  truth  of  the  statement  attached  thereto, 
where  such  signature  and  statement  are  necessary,  or  of 
the  judicial  character  of  the  person  appearing  to  have 
made  such  signature  and  statement.16 

Colonial  laws  assented  to  by  the  governors  of  colonies, 
and  bills  reserved  by  the  governors  of  such  colonies  for  the 
signification  of  Her  Majesty's  pleasure,  and  the  fact  (as  the 
case  may  be)  that  such  law  has  been  duly  and  properly 
passed  and  assented  to,  or  that  such  bill  has  been  duly  and 
properly  passed  and  presented  to  the  governor,  may  be 
proved  (prima  facie)  by  a  copy  certified  by  the  clerk  or 

10  14  &  15  Vict.  c.  99,  8.  7. 


Chap.  X.]  THE   LAW   OF  EVIDENCE.  409 

other  proper  officer  of  the  legislative  body  of  the  colony  to 
be  a  true  copy  of  any  such  law  or  bill.  Any  proclamation 
purporting  to  be  published  by  authority  of  the  governor  in 
any  newspaper  in  the  colony  to  which  such  law  or  bill  re- 
lates, and  signifying  Her  Majesty's  disallowance  of  any 
such  colonial  law,  or  Her  Majesty's  assent  to  any  such  re- 
served bill,  is  prima  facie  proof  of  such  disallowance  or 
assent.17 

Article  84a. 

answers  of  secretary  of  state  as  to  foreign 
jurisdiction. 

The  answers  of  a  Secretary  of  State  to  questions  in  a 
document  under  the  seal  of  a  Court  in  Her  Majesty's  do- 
minions or  held  under  the  authority  of  Her  Majesty, 
framed  so  as  to  raise  any  question  which  has  arisen  in  any 
proceedings,  civil  or  criminal,  in  such  Court,  as  to  the  ex- 
istence, or  extent,  of  any  jurisdiction  of  Her  Majesty  in 
a  foreign  country,  are  conclusive  evidence  of  the  matters 
therein  contained;  and  the  decision  of  the  Secretary  of 
State,  are  for  the  purpose  of  the  proceedings,  final.18 

17  28  &  29  Vict.  c.  63,  s.  6.  "  Colony  "  in  this  paragraph  means 
"  all  Her  Majesty's  possessions  abroad  "  having  a  legislature,  "  ex- 
cept the  Channel  Islands,  the  Isle  of  Man,  and  India."  "  Colony  "  in 
the  rest  of  the  article  includes  those  places. 

is  53  &  54  Vict.  c.  37,  8.  4. 


410  A  DIGEST  OF  [Paet  II. 


CHAPTEK    XI. 

PRESUMPTIONS  AS  TO  DOCUMENTS. 

Article  85. 

presumption  as  to  date  of  a  document. 

When  any  document  bearing  a  date  has  been  proved,  it  is 
presumed  to  have  been  made  on  the  day  on  which  it  bears 
date,  and  if  more  documents  than  one  bear  date  on  the  same 
day,  they  are  presumed  to  have  been  executed  in  the  order 
necessary  to  effect  the  object  for  which  they  were  executed, 
but  independent  proof  of  the  correctness  of  the  date  will 
bo  required  if  the  circumstances  are  such  that  collusion  as 
to  the  date  might  be  practised,  and  would,  if  practised,  in- 
jure any  person,  or  defeat  the  objects  of  any  law.1 

Illustrations. 

(a)  An  instrument  admitting  a  debt,  and  dated  before  the  act  of 
bankruptcy,  is  produced  by  a  bankrupt's  assignees,  to  prove  the  peti- 
tioning creditor's  debt.  Further  evidence  of  the  date  of  the  transac- 
tion is  required  in  order  to  guard  against  collusion  between  the  as- 
signees and  the  bankrupt,  to  the  prejudice  of  creditors  whose  claims 
date  from  the  interval  between  the  act  of  bankruptcy  and  the  adjudi- 
cation^ 

( b )  In  a  petition  for  damages  on  the  ground  of  adultery  letters  are 
produced  between   the  husband   and   wife,   dated   before   the   alleged 


i  1  Ph.  Ev.  4S2-3;  Taylor,  s.  169;  Best,  s.  402. 
2  A  ndcrson  v.  Weston,  1840,  6  Bing.  N.  C.  at  p.  301 ;  Sinclair  r. 
Baggallay,  1838,  4  M.  &  W.  312. 


Chap.  XI.]  THE  LAW  OF  EVIDENCE.  411 

adultery,  and  showing  that  they  were  then  on  affectionate  terms. 
Further  evidence  of  the  date  is  required  to  prevent  collusion,  to  the 
prejudice  of  the  person  petitioned  against.3 

AMERICAN  NOTE. 
General. 

Authorities.— 2  Wharton  on  Evidence,  sees.  977,  988,  1312;  8  Am. 
&  Eng.  Encyclopaedia  of  Law    (2d  ed. ),  p.  729. 

First  clause  of  text.  Pullen  v.  Hutchinson,  25  Me.  249;  Cutts 
v.  York  Mfg.  Co.,  18  Me.  190;  Siceetser  v.  Lowell,  33  Me.  446;  Hill 
v.  McNichol,  80  Me.  209;  Brooks  v.  Chaplin,  3  Vt.  282,  23  Am. 
Dee.  209;  Smith  v.  Porter,  10 "Gray  (Mass.),  66,  68;  Cranson  v.  Goss, 
107  Mass.  439;  Pringle  v.  Pringle,  59  Pa.  281.  See  Scobey  v.  Walker, 
114  Ind.  254.  Such  presumption  is  rebuttable.  Parke  v.  Neely,  90 
Pa.  52;  Knisely  v.  Sampson,  100  111.  573;  Dudley  v.  Cadwell,  19 
Conn.  218;  New  Haven  County  Bank  v.  Mitchell,  15  Conn.  206. 

Order  of  execution. —  Loomis  v.  Pingree,  43  Me.  299.  Compare 
Hagerty  v.  White,  69  Wis.  317. 

It  presents  a  question  for  the  jury.  Oilman  v.  Moody,  43  N.  H. 
239. 

If  an  attachment  of  lands  and  a  deed  of  the  same  by  the  debtor 
are  made  on  the  same  day,  and  the  attachment  appears  on  the 
town  records  to  have  been  made  six  hours  before  the  deed  was 
lodged  for  record,  it  will  be  presumed,  in  the  absence  of  all  evi- 
dence to  the  contrary,  that  the  deed  was  delivered  after  the  attach- 
ment.    Bissell  v.  Nooney,  33  Conn.  417. 

In  ejectment  against  a  mortgagor,  by  one  claiming  under  a  deed 
with  full  covenants  of  title  from  the  holder  of  a  second  mortgage, 
the  plaintiff  introduced,  in  proof  of  his  grantor's  title,  a  quitclaim 
deed  to  him  from  the  holder  of  the  first  mortgage,  executed  on  the 
same  day  with  the  deed  to  himself,  and  to  which  his  own  signature 
was  affixed  as  one  of  the  witnesses.  Both  deeds  were  also  acknowl- 
edged before  and  witnessed  by  the  same  magistrate.  Held,  that  it 
was  unnecessary  to  introduce  extraneous  evidence  to  show  that  the 
quitclaim  deed  was  executed  and  delivered  before  the  other,  as  it 
was  reasonable  to  suppose  that  such  was  the  fact,  and  the  trans- 
action ought  to  be  so  construed  as  to  carry  out  the  obvious  intent 
of  the  parties.  -  Dudley  v.  Cadwell,  19  Conn.  225. 

3  Houlston  v.  Smith,  1825,  2  C.  &  P.  at  p.  24. 


412  A  DIGEST  OF  [Pabt  II. 

Date  presumed  correct. —  Beck  v.  Cole,  4  Sand.  79 ;  Livingston  v. 
Amoux,  56  X.  Y.  507,  519;  Robinson  v.  Wheeler,  25  N.  Y.  252;  Cos- 
tigan  v.  Gould,  5  Den.  290;  Harris  v.  Norton,  16  Barb.  264.  Compare 
Remington  Co.  v.  0' 'Dougherty,  81  N.  Y.  474. 

A  deed  is  presumed  to  have  been  delivered  at  its  date.  L.  E.  & 
W.  R.  R.  Co.  v.  Whittham,  155  111.  514;  Miller  v.  Meers,  155  111.  284; 
Abrams  v.  Pomeroy,  13  111.  133. 

Such  presumption  is  rebuttable.  Kinsely  v.  Sampson,  100  111.  573; 
Abrams  v.  Pomeroy,  13  111.  133. 

Parol  evidence  is  admissible  to  show  that  an  execution  was  issued 
before  judgment  was  entered.  Baker  v.  Barber,  16  111.  App.  621, 
623;  Humphreys,  etc.    v.  Stvain,  21  111.  App.  232. 

Priority  as  to  various  writings  may  be  established  by  parol  evi- 
dence.     Schaeppi  v.  Glade,  195  111.  62,  62  N.  E.  847. 

A  blank  indorsement  is  presumed  to  have  been  made  at  the  date  of 
the  note.  Cecil  v.  Mix,  6  Ind.  478;  Bradley,  Holton  &  Co.  v. 
Whicker,  23  Ind.  App.  380. 

A  note  and  guaranty,  executed  at  the  same  time,  are  presumed  to 
be  upon  the  same  consideration.    Bondurant  v.  Bladen,  19  Ind.  160. 

Deeds. — Deeds  come  within  the  rule.  Henthorn  v.  Doe,  1  Blackf. 
157. 

New   Jersey. 

Authorities. —  A  deed  is  presumed  to  have  been  delivered  on  the 
day  of  its  date.  Huber  v.  Diebold,  25  N.  J.  Eq.  171.  See  Halsey  v. 
Ball,  36  N.  J.  Eq.  161. 

The  date  of  the  deed  is  prima  facie  evidence  of  the  time  title- 
passed.     Ellsworth  v.  Central  R.  Co.,  34  N.  J.  L.  94. 

A  post-dated  check  is  conclusively  presumed  to  have  been  issued 
on  the  date  written.     Taylor  v.  Sip,  30  N.  J.  L.  284. 

Maryland. 

Sustaining  text. —  Williams  v.  Wood,   16  Md.  220. 

Pennsylvania. 

First  clause  of  text.     Pringle  v.  Pringle,  59  Pa.   281. 

Such  presumption  is  rebuttable.     Parke  v.  Neely,  90  Pa.  52. 


Chap.  XI.]  THE  LAW  OF  EVIDENCE.  41J 

Article  86. 

presumption  as  to  stamp  of  a  document. 

When  any  document  is  not  produced  after  due  notice  to 
produce,  and  after  being  called  for,  it  is  presumed  to  have 
been  duly  stamped,4  unless  it  be  shown  to  have  remained 
unstamped  for  some  time  after  its  execution.5 

Article  87. 

presumption  as  to  sealing  and  delivery  of  deeds. 

When  any  document  purporting  to  be  and  stamped  as  a 
deed,  appears  or  is  proved  to  be  or  to  have  been  signed  and 
duly  attested,  it  is  presumed  to  have  been  sealed  and  de- 
livered, although  no  impression  of  a  seal  appears  thereon." 

AMERICAN   NOTE. 
General. 

Authorities. —  2  Wharton  on  Evidence,  see.  1314;  Ward  v.  Lewis, 
4  Pick.  (Mass.)  518,  520;  Mill  Dam  Foundry  v.  Hovey,  21  Pick. 
(Mass.)  417,  428;  Bradford  v.  Randall,  5  Pick.  (Mass.)  490;  Brolley 
v.  Lapham,  13  Gray  (Mass.),  294;  Chilton  v.  People,  00  111.  501; 
State  v.  Humbcrd,  51  Md.  327;  State  v.  Thompson,  49  Mo.  1S8; 
Cadell  v.  Allen,  99  N.  C.  542. 

Modifying  rule  of  text,     Boothbay  v.  Giles,  08  Me.  100. 

4  Closmadeuc  v.  Carrel,  1850,  18  C.  B.  30.  In  this  case  the  growth 
of  the  rule  is  traced,  and  other  cases  are  referred  to,  in  the  judgment 
of  Cresswell,  J. 

5  Marine  Investment  Company  v.  Haviside,  1872,  L.  P.  5  H.  L.  624. 

6  Hall  v.  Bainbridge,  1848,  12  Q.  B.  699,  at  p.  710.  Re  Sandilands, 
1871,  L.  R.  6  C.  P.  411. 


414  A  DIGEST  OF  [Part  n. 

Any  irregularity  in  this  regard  may  be  corrected  in  an  equitable 
proceeding.  Harding  v.  Jewell,  73  Me.  426.  See  also  State  v.  Peck, 
53  Me.  284,  286;  Barnett  v.  Abbott,  53  Vt.  120;  Probate  Ct.  v.  May, 
52  Vt.  182;  Hankleman  v.  Peterson,  154  HI.  419. 

A  deed,  regular  upon  its  face,  and  found  in  the  hands  of  the 
grantee,  is  presumed  to  have  been  delivered.  Butrick  v.  Tilton,  141 
Mass.  93;  Harshburger  v.  Carroll,  163  111.  636.  Compare  Johnson  v. 
Seidel,  150  Pa.  397;  Stevens  v.  Castel,  63  Mich.  111. 

A  deed  regular  upon  its  face,  and  found  in  the  hands  of  the 
grantee,  is  presumed  to  have  been  delivered.  Harshburger  v.  Carroll, 
163  111.  636. 

Any  irregularity  in  this  regard  may  be  corrected  in  an  equitable 
proceeding.    Henkleman  v.  Peterson,  154  111.  419. 

New    Jersey. 

The  fact  that  a  bond  is  in  the  hands  of  the  obligee  is  prima  facie 
evidence  of  delivery.  Farlee  v.  Farlee,  1  Zab.  279;  Hill  v.  Beach, 
12  N.  J.  Eq.  31;  Smith  v.  Moore,  4  N.  J.  Eq.  485. 

Possession  of  a  deed  by  the  grantee  is  prima  facie  evidence  of  de- 
livery. Black  v.  Shreve,  13  N".  J.  Eq.  455;  Benson  v.  Woolvcrton, 
15  N.  J.  Eq.  158;  Terhune  v.  Oldis,  44  X.  J.  Eq.  140;  Vreeland  v. 
Vreeland,  48  N.  J.  Eq.  56,  49  N.  J.  Eq.  322. 

The  presumption  that  a  scroll  under  the  signature  was  intended 
as  a  seal  and  that  the  instrument  was  delivered  arises  from  the 
use  of  the  words  "  Witness  my  hand  and  seal/'  Force  v.  Craig, 
2  Hal.  272;   Corlies  v.  Van  Note,  16  N.  J.  L.  324. 

Presumption  is  that  a  grantee  accepts  a  deed  beneficial  to  him. 
Vreeland  v.  Vreeland,  48  N.  J.  Eq.  56,  49  N.  J.  Eq.  322. 

Maryland. 

Authorities. —  State  v.  Humberd,  54  Md.  327. 

Delivery  of  a  bill  or  note  is  presumed  from  possession.  Keedy  v. 
Moats,  72  Md.  325. 

Pennsylvania. 

The  presumption  that  a  deed  was  delivered  arises  from  proof  of  its 
signing,  attestation,  and  acknowledgment.  Kern  v.  Howell,  180 
Pa.  315.     See  Johnson  v.  Seidel,  150  Pa.  397. 


Chap.  XI.]  THE  LAW  OF  EVIDENCE.  f    415 

The  presumption  of  delivery  of  a  deed,  which  arises  from  proof 
of  its  signing,  acknowledgment,  and  recording,  cannot  be  overcome 
by  proving  declarations  of  the  grantor  that  it  was  not  delivered. 
Ingles  v.  Ingles,  150  Pa.  397. 

The  jury  may  infer  delivery  of  a  deed  from  the  fact  of  signing 
and  the  sealing  thereof  if  a  seal  appears,  even  though  the  deed  con- 
tains no  recital  as  to  sealing.  Long  v.  Ramsay,  1  S.  &  R.  72;  Mil- 
ler  v.  Binder,  28  Pa.  489. 

Effect  of  a  recital  in  the  instrument  that  it  is  sealed.  Miller  v. 
Binder,  28  Pa.  489. 

No  deed  complete  without  a  seal.  Hacker's  Appeal,  121  Pa.  192; 
Lorah  v.  Nissley,  15G  Pa.  329;   Taylor  v.  Glaser,  2  S.  &  R.  502. 

Article  88. 
presumption  as  to  documents  thirty  tears  old. 

Where  any  document  purporting  or  proved  to  be  thirty 
years  old  is  produced  from  any  custody  which  the  judge  in 
the  particular  case  considers  proper,  it  is  presumed  that 
the  signature  and  every  other  part  of  such  document  which 
purports  to  be  in  the  handwriting  of  any  particular  person 
is  in  that  person's  handwriting,  and,  in  the  case  of  a  docu- 
ment executed  or  attested,  that  it  was  duly  executed  and 
attested,  by  the  persons  by  whom  it  purports  to  be  executed 
and  attested ;  and  the  attestation  or  execution  need  not  be 
proved,  even  if  the  attesting  witness  is  alive  and  in  court. 

Documents  are  said  to  be  in  proper  custody  if  they  are  in 
the  place  in  which,  and  under  the  care  of  the  person  with 
whom,  they  would  naturally  be ;  but  no  custody  is  improper 
if  it  is  proved  to  have  had  a  legitimate  origin,  or  if  the 
circumstances  of  the  particular  case  are  such  as  to  render 
such  an  origin  probable.7 

7  2  Ph.  Ev.  245-8 ;  Starkie,  521-6 ;  Taylor,  s.  87  and  ss.  658-667 ; 
Best,  s.  220. 


416  A  DIGEST  OF  [Part  II. 


AMERICAN  NOTE. 

General. 

Authorities. —  1  Wharton  on  Evidence,  sees.  194-199,  703,  732;  1 
Greenleaf  on  Evidence  (15th  ed.),  sees.  21,  142,  143,  144,  570;  2 
Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  324  et  seq.;  Crane  v. 
Marshall,  16  Me.  27,  33  Am.  Dec.  631;  Goodwin  v.  Jack,  62  Me. 
414;  Clark  v.  Wood,  34  N.  H.  447;  Laiorence  v.  Tennant,  64  N.  H. 
532,  15  Atl.  543;  Applegate  v.  Lexington,  etc.,  Mining  Co.,  117  U. 
S.  255 ;  Bell  v.  Brewster,  44  0.  St.  690 ;  Fowler  v.  Scott,  64  Wis.  509 ; 
Geer  v.  Lumber  Co.,  134  Mo.  85;  Scharff  v.  Keener,  64  Pa.  376; 
Stockbridge  v.  West  Stockbridge,  14  Mass.  257;  Floyd  v.  Teioksbury, 
120  Mas?.  362;  Rust  v.  Boston  Mill,  6  Pick.  (Mass.)  158;  Monumoi 
Great  Beach  v.  Rogers,  1  Mass.  159;  Pitt  v.  Temple,  2  Mass.  538; 
King  v.  Little,  1  Gush.  (Mass.)  436;  Boston  v.  Weymouth,  4  Cush. 
(Mass.)  538;  Chcnery  v.  IVaZMawi,  8  Cush.  (Mass.)  327;  Boston  v. 
Richardson,  13  Allen  (Mass.),  146;  Palmer  v.  Stevens,  11  Cush. 
(Mass.)  147;  Tolman  v.  Emerson,  4  Pick.  (Mass.)  160;  Boston  v. 
Richardson,  105  Mass.  351;  Whitman  v.  /Sffrcwo,  166  Mass.  451,  460; 
Pettengill  v.  Boynton,  139  Mass.  244,  29  N.  E.  655;  Green  v.  Zn7ia&- 
itanfs  of  Chelsea,  24  Pick.  (Mass.)  71;  Whitman  v.  Eeneberry,  73 
111.  109. 

A  document  (r.  jr.,  "land  plans"  of  a  railroad)  produced  from  its 
proper  custody  where  it  lias  been  kept  more  than  thirty  years  is 
admitted  without  other  proof  of  its  authenticity,  i.  e.,  that  it  was 
what  it  purported  to  be.  New  Haven  v.  N.  Y.,  N.  E.  &  E.  R.  R. 
Co.,  72  Conn.  232. 

Deeds. — -Deeds  come  within  the  rule.  Thruston  v.  Masterson,  9 
Dana  (Ky.),  228:  Cook  v.  Totton,  6  Dana  (Ky.),  108;  Eenthom  v. 
"'"'.  1  Blackf.   (Ind.)   157;  Morris  v.  Callanan,  105  Mass.  129. 

Powers  of  attorney. —  And  powers  of  attorney.  Winn  v.  Patter- 
son, 9  Pet.   (U.  S.)   663. 

Bonds.— And  bonds.  Walton  v.  Coulson,  1  McLean  (U.  S.),  120; 
Coulson  v.  Walton,  9  Pet.  (U.  S.)  62;  Eoddy  v.  Earryman,  3  Har. 
A  M.   (Md.)  581;  Bennett  v.  Runyon,  4  Dana   (Ky.),  422. 

Records. —  And  records.  Lt'f Me  v.  Downing,  37  N.  H.  355 ;  Goodwin 
v.  ./f/r,V.  62  Me.  414. 

Licenses. — ■  And  licenses.    Boston  v.  Richardson,  105  Mass.  351. 


Chap.  XI.]  THE  LAW  OF  EVIDENCE.  417 

Military  pay-rolls. —  And  pay-rolls.  Bell  v.  Brewster,  44  0.  St. 
690. 

Surveys,  field-books,  and  maps. —  And  surveys,  field-books,  and 
maps.  Aldrich  v.  Griffith,  66  Vt.  390;  Hart,  v.  Gage,  6  Vt.  170;  Boa- 
ton  Water  Power  Co.  v.  Hanlan,  132  Mass.  483;  Holt  v.  Maverick, 
5  Tex.  Civ.  App.  650. 

Receipts  and  letters. —  And  letters  and  receipts.  McReynolds  v. 
Langenberger,  57  Pa.  St.  13. 

Computation  of  age. —  The  time  is  computed  to  the  day  when  the 
instrument  is  admitted  in  evidence,  not  to  that  when  the  suit  is  in- 
stituted. Johnson  v.  Shaw,  41  Tex.  428 ;  Johnson  v.  Timmons,  50 
Tex.  521;  Bass  v.  Sevier,  58  Tex.  567;  Gardner  v.  Granniss,  57  Ga. 
555. 

In  some  States  the  age  of  a  will  is  reckoned  from  the  death  of  the 
testator.     Shaller  v.  Brand,  6  Binn.    (Pa.)   439,  6  Am.  Dec.  482. 

Possession  under  deed. —  In  case  of  deeds  of  land  in  order  that  the 
presumption  arise  as  stated  in  the  text,  some  courts  hold  that  the 
grantee's  possession  of  the  land  must  be  shown.  Waldron  v.  Tuttle, 
4  N.  H.  371;  Bank  of  Middlebury  v.  Rutland,  33  Vt.  414;  Horner 
v.  Cilley,  14  N.  H.  85 ;  Clark  v.  Wood,  34  N.  H.  447 ;  Crane  v.  Mar- 
shall, 16  Me.  29,  33  Am.  Dec.  631. 

The  prevailing  will  is,  however,  to  the  contrary.  2  Am.  &  Eng. 
Encyclopaedia  of  Law  (2d  ed.),  p.  329,  and  cases  cited.  And  it  is 
generally  held  that  the  instrument  may  be  shown  to  be  genuine  by 
other  corroborative  evidence.  Long  v.  McDow,  87  Mo.  197;  Whit- 
man v.  Heneberry,  73  111.  109;  Nowlin  v.  Burwell,  75  Va.  551 ;  Walker 
V.  Walker,  67  Pa.  185;  Boston  v.  Richardson,  105  Mass.  351. 

Custody. —  Whitman  v.  Shaw,  166  Mass.  460  (quoting  this 
article) . 

Secondary  evidence. —  The  contents  of  a  lost  ancient  evidence  may 
be  proved  by  a  copy.  Winn  v.  Patterson,  9  Pet.  (U.  S.)  667.  Or 
oral  evidence.     McReynolds  v.  Langenberger,  57  Pa.  St.  33. 

The  execution  of  the  original  must,  however,  be  proved  by  circum- 
stances, such  as  possession  or  marks  of  age  on  the  paper.  Schunior 
v.  Russell,  83  Tex.  95. 

Wills. — Wills  come  within  the  rule.  Jackson  v.  Luquere,  5  Cow. 
221;  Fetherly  v.  Waggoner,  11  Wend.  599;  Storing  v.  Boiven,  6  Barb. 
109. 

Leases. —  And  so  do  leases.     Hetclett  v.  Cock,  7  Wend.  371. 

27 


418  A  DIGEST  OF  [Pabt  II. 

Alterations. —  The  one  claiming  under  the  ancient  instrument 
should  explain  material  alterations.    Herrick  v.  Malin,  22  Wend.  388. 

The  presumption  of  genuineness  arising  from  the  age  of  a  docu- 
ment is  rebutted  by  proof  of  alterations  in  it.  Ridgely  v.  Johnson, 
11  Barb.  640. 

New   Jersey. 

Authority. —  Havens  v.  Land  Co.,  47  N.  J.  Eq.  365. 

It  must  be  shown  that  possession  accompanied  the  deed.  Osborne 
v.  Tunis,  25  N.  J.  L.  633;  Havens  v.  Land  Co.,  47  N.  J.  Eq.  365. 

The  recital  in  a  deed  of  1823,  more  than  sixty  years  old,  of  the 
existence  of  an  earlier  deed  of  1772,  is  admissible.  Boeder  v.  Jen- 
nings, 40  Fed.   199. 

Ancient  deeds  as  evidence. —  G.  S.  1895,  "Conveyances,"  3. 

Maryland. 

Authorities. —  Carroll  v.  Norwood,  1  H.  &  J.  167. 

Signatures  to  documents  thirty  years  old  are  presumed  to  be 
genuine.     Allender  v.  Vestry  of  Trinity  Church,  3  Gill,  166. 

A  will  made  144  years  before  is  presumed  to  have  been  duly  exe- 
cuted.    Hall  v.  Gittings,  2  H.  &  J.  112. 

Receipts  thirty  years  old. —  Allender  v.  Church,  3  Gill,   166. 

Bonds. —  Bonds  come  within  the  rule.  Hoddy  v.  Harryman,  3 
Har.  &  M.  581. 

Pennsylvania. 

Authorities. —  Zeigler  v.  Houtz,  1  W.  &  S.  533;  Lou  v.  Mumma, 
43  Pa.  267;  Lewis  v.  Lewis,  4  W.  &  S.  378;  Union  Canal  Co.  v. 
Loyd,  4  W.  &  S.  393;  Scharff  v.  Keener,  64  Pa.  376. 

Documents  purporting  to  be  ancient  should  be  carefully  scruti- 
nized as  to  genuineness  and  age.     Wilson  v.  Rulofson,  201  Pa.  29. 

A  written  instrument,  thirty  years  old  and  in  proper  custody, 
needs  no  further  proof,  even  though  the  subscribing  witnesses  be 
living.     McReynolds  v.  Longenberger,  57   Pa.    13. 

An  ancient  receipt  admitted.     Urket  v.  Coryell,  5  W.  &  S.  60. 

A  map  sixty  years  old  in  proper  custody  is  admissible  as  an 
ancient  document  to  prove  boundary.  Smucker  v.  Railroad  Co.,  188 
Pa.  40. 

A  draft  of  a  survey  over  100  years  old,  made  by  a  deputy  sur- 
vivor and  in  his  handwriting,  is  admissible  to  prove  boundary. 
Mining  Co.  v.  Auten.  188  Pa.  568. 


Chap.  XI.]  THE  LAW  OF  EVIDENCE.  419 

Treasurer's  tax  receipts.     McReynolds  v.  Longenberger,  57  Pa.  13. 

Custody. —  Rogers  v.  Coal  &  Iron  Co.,  31  Leg.  Int.  325. 

Possession  under  deed. —  If  proof  of  possession  cannot  be  made, 
the  genuineness  of  an  ancient  deed  may  be  otherwise  established. 
Walker  v.  Walker,  67  Pa.  185;  Arnold  v.  Gorr,  1  Rawle,  223;  Mc- 
Gennis  v.  Allison,   10  S.  &  R.   197. 

Proof  of  possession  accompanying  the  deed  ought  to  be  made. 
Healy  v.  Moul,  5  S.  &  R.  181;  Walker  v.  Walker,  67  Pa.  185.  See 
McGennis  v.   Allison,   10   S.   &  R.   197. 

A  deed  thirty  years  old,  accompanied  by  possession,  proves  itself. 
Boivser  v.  Cravener,  56  Pa.   132;   Zeigler  v.  Houtz,  1  W.  &  S.  533. 

An  ancient  will  admissible  without  proof  of  execution,  after  proof 
of  thirty  years'  possession.     Shaller  v.  Brand,  6  Binn.  435. 

• 
Article  89. 

presumption  as  to  alterations. 

~No  person  producing  any  document  which  upon  its  face 
appears  to  have  been  altered  in  a  material  part  can  claim 
under  it  the  enforcement  of  any  right  created  by  it,  unless 
the  alteration  was  made  before  the  completion  of  the  docu- 
ment or  with  the  consent  of  the  party  to  be  charged  under  it 
or  his  representative  in  interest. 

This  rule  extends  to  cases  in  which  the  alteration  was 
made  by  a  stranger,  whilst  the  document  was  in  the  custody 
of  the  person  producing  it,  but  without  his  knowledge  or 
leave.8 

Alterations  and  interlineations  appearing  on  the  face  of 
a  deed  are,  in  the  absence  of  all  evidence  relating  to  them, 

spigot's  Case,  1604,  11  Coke's  Rep.  47;  Davidson  v.  Cooper,  1843, 
11  M.  &  W.  778;  1844,  13  M.  &  W.  343;  Aldous  v.  Cornwell,  1868, 
L.  R.  3  Q.  B.  573.  This  qualifies  one  of  the  resolutions  in  Pigot's 
Case.  The  judgment  reviews  a  great  number  of  authorities  on  the 
subject. 


420  A  DIGEST   OF  [Pabt  II. 

presumed  to  have  been  made  before  the  deed  was  com- 
pleted.9 

Alterations  and  interlineations  appearing  on  the  face  of 
a  will  are,  in  the  absence  of  all  evidence  relating  to  them, 
presumed  to  have  been  made  after  the  execution  of  the 
will.10 

There  is  no  presumption  as  to  the  time  when  alterations 
and  interlineations,  appearing  on  the  face  of  writings  not 
under  seal,  were  made11  except  that  it  is  presumed  that  they 
were  so  made  that  the  making  Avould  not  constitute  an 
offence.12 

An  alteration  is  said  to  be  material  when,  if  it  had  been 
made  with  the  consent  of  the  party  charged,  it  would  have 
affected  his  interest  or  varied  his  obligations  in  any  way 
whatever. 

An  alteration  which  in  no  way  affects  the  rights  of  the 
parties  or  the  legal  effect  of  the  instrument,  is  immaterial.13 

AMERICAN  NOTE. 

General. 

Authorities. —  2  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p. 
181  ct  scq,;  1  Greenleaf  on  Evidence   (15th  ed.),  sec.  564  et  seq. 

First  paragraph  of  text.  Angle  v.  Life  Ins.  Co.,  92  U.  S.  330; 
Russell  v.  Russell,  36  Minn.  376;  Hunt  v.  Gray,  35  N.  J.  L.  227; 
Craighead  v.  McLoney,  99  Pa.  211;   Charlton  v.  Reed,  61   la.   166; 

»  Doe  v.  Catomore,  1851,  16  Q.  B.  745. 

10  Simmons  v.  Rudall,  1880,  1  Sim.  (N.  S.)   136. 

ii  Knight  v.  Clements,  1838,  8  A.  &  E.  215. 

12  B.  v.  Gordon,  1855,  Dearsley  &  P.  592. 

13  This  appears  to  be  the  result  of  many  cases  referred  to  in  Tay- 
lor, ss.  1822,  1823;  see  also  the  judgments  in  Davidson  v.  Cooper  and 
Aldous  v.  Cornwall,  referred  to  above. 


Chap.  XI.]  THE   LAW   OF  EVIDENCE.  421 

Starr  v.  Lyon,  5  Conn.  540;  Coit  v.  Starkweather,  8  Conn.  293; 
Osgood  v.  Stevenson,  143  Mass.  399;  Warring  v.  FFilZtoms,  8  Pick. 
(Mass.)  322;  Wheelock  v.  Freeman,  13  Pick.  (Mass.)  165;  Davis  v. 
Jenney,  1  Mete.  (Mass.)  221;  Boston  v.  Benson,  12  Cush.  (Mass.) 
61;  Agawam  Bank  v.  Sears,  4  Gray  (Mass.),  95;  Doane  v.  Eldridge, 
16  Gray  (Mass.),  255;  Fay  v.  gmttA,  1  Allen  (Mass.),  477;  Stoddard 
v.  Penniman,  108  Mass.  366;  Draper  v.  Wood,  112  Mass.  315;  Stod- 
dard v.  Penniman,  113  Mass.  386;  Cape  Ann  ¥af.  Banfc  v.  Burns,  129 
Mass.  596. 

Some  authorities  hold  that  all  alterations  are  presumed  to  have 
been  made  after  execution.     Burnham  v.  Ayer,  35  N.  H.  351. 

Others,  that  there  is  no  presumption  as  to  when  alterations  are 
made,  but  that  the  whole  question  is  for  the  jury.  Boothby  v. 
Stanley,  34  Me.  515,  516:  Smith  v.  U.  S.,  2  Wall.  219,  232;  Citizens' 
Nat.  Bank  v.  Williams,  174  Pa.  66;  Wilson  v.  Eotchkiss'  Est.,  81 
Mich.  172;  Hodnett  v.  Pace,  84  Va.  873;  Sisson  v.  Pearson,  44  111. 
App.  81;  Wilde  v.  Armsby,  6  Cush.  (Mass.)  314,  318;  Simpson  v. 
Davis,  119  Mass.  269,  270,  20  Am.  Rep.  324. 

In  this  country  the  rule  does  not  extend  to  alterations  made 
by  a  stranger  without  the  consent  of  the  person  having  custody. 
Nichols  v.  Johnson,  10  Conn.  192,  196;  Hayden  v.  Goodnow,  39 
Conn.  164;  Bailey  v.  Taylor,  11  Conn.  541;  Mix  v.  Royal  Ins.  Co.,  169 
Pa.  639;  Sewing  Machine  Co.  v.  Dakin,  86  Mich.  581:  Orlando  v. 
Gooding,  34  Fla.  244;  Drum  v.  Drum,  133  Mass.  566;  State  v.  Mo- 
Gonigle,  101  Mo.  353. 

Immaterial  alterations. —  Burnham  v.  Ayer,  35  N.  H.  351;  Robert- 
son v.  Hay,  91  Pa.  242;  Pruden  v.  Nester,  103  Mich.  540:  i?!/an  v. 
Ftrsf  ATa«.  Bank,  148  111.  349;  Mersman  v.  TFeraes,  112  U.  S.  139:  Ful- 
ler v.  (Jreen,  64  Wis.  159;  Kingston  Bank  v.  Bosserman,  52  Mo.  App. 
269  (contra);  Church  v.  FotoZe,  142  Mass.  12;  Brown  v.  Pinkham, 
18  Pick.  (Mass.)  172:  "Pose  v.  DoZan,  108  Mass.  155,  11  Am.  Rep. 
333;  Hutch  v.  Hatch,  9  Mass.  307:  Smith  v.  Crooker,  5  Mass.  538; 
Com.  v.  Emigrant  Sav.  Bank,  98  Mass..  12:  /7tm*  v.  Adawis,  6  Mass. 
519;  Ames  v.  Colburn,  11  Gray  (Mass.),  390. 

Any  alteration  in  a  deed,  to  render  it  void,  must  be  a  material 
one;  that  is,  one  which  causes  the  deed  to  speak  a  language  differ- 
ent  in  legal  effect  from  that  which  it  spoke  originally.  Murray  v. 
Klinzing,  64  Conn.  85. 

Alteration  before  delivery. — An  alteration  to  vitiate  must  be  made 
after  execution  and  delivery.  Banning  v.  Vrooman,  12  N.  Y.  St.  R. 
393. 


422  A   DIGEST   OF  [Pabt  II. 

Alteration  by  stranger. —  Disapproving  rule  of  the  text.  Van 
Brant  v.  Eoff,  35  Barb.  501  ;  Dins  more  v.  Duncan,  57  N.  Y.  573,  15 
Am.  Rep.  534;  Rees  v.  Overbaugh,  6  Cow.  746;  Solon  v.  Williams- 
burgh  Sav.  Bank,  114  N.  Y.  122. 

An  agent  acting  without  authority  is  a  stranger.  Rees  v.  Over- 
baugh, 6  Cow.  746. 

Nonapparent  alterations. —  If  no  alteration  appears  on  the  face, 
the  burden  of  showing  it  is  upon  the  one  claiming  it.  Farmers'  L.  & 
T.  Co.  v.  Siefke,  144  N.  Y.  354. 

New   Jersey. 

An  alteration  in  a  deed,  against  the  interest  of  the  party  pro- 
ducing the  deed,  need  not  be  explained  by  him.  Farlee  v.  Farlee, 
1   Zab.  280. 

Words  through  which  a  line  has  been  drawn,  but  which  are  still 
legible,  form  part  of  the  deed.  Rosenkrans  v.  Snover,  19  N.  J.  Eq. 
420. 

Admissibility  of  altered  document. —  A  document  is  admissible  in 
evidence  even  though  altered  and  no  explanation  is  made;  character 
of  the  alteration  is  for  the  jury.  Hoey  v.  Jarman,  39  N.  J.  L.  523. 
40  N.  J.  L.  379. 

Alteration  of  a  receipt  by  the  party  holding  it  renders  it  inad- 
missible in  evidence;  not.  however,  when  such  alteration  is  by  a 
stranger.     Goodfellow  v.  Inslee,  12  K  J.  Eq.  355. 

It  is  for  the  court  to  decide  by  inspection  whether  or  not  there 
seems  to  be  an  alteration  in  a  bond.     Shinn  v.  White,  6  Hal.  187. 

Material  alterations. —  Material  alteration  of  a  memorandum  of 
sale  by  the  vendee  annuls  the  instrument  as  a  contract  and  as  evi- 
dence in  favor  of  the  vendee.     Schmidt  v.  Quinzel,  55  N.  J  .Eq.  792. 

Propriety  of  a  material  alteration  must  be  shown  by  a  prepon- 
derance of  the  evidence.     Putnam  v.   Clark,  33  N.  J.  Eq.   338. 

Immaterial  alterations  made  by  a  party,  as  avoiding  the  instru- 
ment.    Jones  v.  Crowley,  57  N.  J.  L.  222. 

Alteration  of  a  bill  or  note  in  a  material  part  by  the  payee  ren- 
ders it  void,  though  made  without  fraudulent  intent.  Lewis  v. 
Schenrk,   18  N.   J.  Eq.    166. 

Alteration  by  a  party,  even  though  in  an  immaterial  part,  avoids 
the  deed.  Wright  v.  Wright,  2  Hal.  175;  White  v.  Williams,  3 
N.  J.  Eq.  385. 


Chap.  XI.]  THE   LAW   OF  EVIDENCE.  423 

By  consent. —  Alteration  in  a  bond  made  with  the  consent  of  all 
parties  does  not  invalidate  it.  Camden  Bank  v.  Hall,  14  X.  J.  L. 
583. 

Time  of  alteration. —  No  presumption  that  an  alteration  on  lace 
of  a  note  was  made  after  its  execution.     Bank  v.  Hall,   1  Hal.  215. 

Whether  an  alteration  was  made  before  or  after  execution  of  the 
instrument  is  for  the  jury.  Moore  V.  Moore,  Coxe,  303;  Bank  v. 
Hall,  1  Hal.  215 ;  Wright  v.  Wright,  2  Hal.  175;  Richman  v.  Rich- 
man,  5  Hal.  217;  Hunt  v.  Cray,  35  N.  J.  L.  227;  White  v.  Williams, 
3  N.  J.  Eq.  385. 

Alteration  on  the  face  of  an  assessment  by  commissioners  is  pre- 
sumed to  have  been  made  before  its  execution.  N.  Riv.  Meadow  Co. 
v.  Shrewsbury  Church,  2  Zab.  424. 

Alteration  by  stranger. —  The  document  is  not  invalidated  by 
material  alterations  made  by  a  stranger  if  he  acted  without  author- 
ity.   Hunt  v.  Gray,  35  N.  J.  L.  227. 

Maryland. 

Authorities. —  Mutilation  or  obliteration  of  an  instrument  raises 
the  presumption  that  it  was  canceled.     Handy  v.  State,  7  H.  &  J-  42. 

An  altered  will  not  executed  anew  stands  as  if  unaltered.  Esch- 
bach  v.  Collins,  61  Md.  478. 

A  party  has  no  authority  to  fill  unwritten  spaces  in  a  complete 
bill  or  note.     Burrows  v.  Klunk,  70  Md.  451. 

Alterations  by  strangers. —  Wickes  v.  Caulk,  5  H.  &  J.  36. 

Material  alterations.—  Mitchell  v.  Ringgold,  3  H.  &  J.  159;  Owen 
v.  Hall,  70  Md.  97. 

Changing  the  date  of  maturity  of  a  promissory  note  is  a  mate- 
rial alteration.    Avirett  v.  Barnhart,  86  Md.  545. 

Pennsylvania. 

Authorities. —  An  intentional  material  alteration  renders  the  in- 
strument void,  even  though  made  without  wrongful  intent.  Craig- 
head v.  McLoney,  99  Pa.  211. 

Alterations  in  deed  of  land  do  not  revest  title  in  grantor.  Wal- 
lace v.  Harmstad,  15  Pa.  462. 

Material  alteration  in  negotiable  note  made  by  a  party  to  it 
renders  it  void  even  against  a  bona  fide  purchaser.  Bank  v.  Chis- 
olm,  169  Pa.  564. 


424  A  DIGEST  OF  [Pabt  II. 

Where  the  alterations  are  not  suspicious  in  character,  the  pre- 
sumption is  as  stated  in  the  text.  Zimmerman  v.  Camp,  155  Pa. 
152. 

Where  the  alteration  is  suspicious  and  unexplained,  the  docu- 
ment may  be  excluded.  Burg  win  v.  Bishop,  91  Pa.  336;  Hartley 
v.  Corboy,  150  Pa.  23. 

As  to  filling  blank  spaces,  see  Bell  v.  Kennedy,  100  Pa.  215. 

Presumption  as  to  time. —  There  is  no  presumption  as  to  when 
alterations  are  made,  but  the  whole  question  is  for  the  jury.  Citi- 
zens' Nat.  Bank  v.  Williams,  174  Pa.  66 ;  Robinson  v.  Myers,  67 
Pa.  9;  Jordan  v.  Stewart,  23  Pa.  244. 

Wills. —  Authority  for  text  as  to  alterations  of  a  will.  Linnard's 
Appeal,  93  Pa.  313. 

An  altered  will  not  executed  anew  stands  as  if  unaltered.  Sim- 
relVs  Estate,  154  Pa.  604. 

By  a  stranger. —  The  rule  does  not  extend  to  alterations  made 
by  a  stranger  without  the  consent  of  the  person  having  custody. 
Mix  v.  Royal  Ins.  Co.,  169  Pa.  639. 

Immaterial  alterations. —  Robertson  v.  Hay,  91  Pa.  242. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  425 


CHAPTER    XII. 

OF  THE  EXCLUSION  OF  ORAL  BY  DOCUMENTARY  EVIDENCE, 
AND  OF  THE  MODIFICATION  AND  INTERPRETATION  OF 
DOCUMENTARY  BY  ORAL  EVIDENCE. 


Article  90.* 

evidence  of  terms  of  contracts,  grants,  and  other 
dispositions  of  property  reduced  to  a  document- 
ARY FORM. 

When  any  judgment  of  any  Court  or  any  other  judicial  or 
official  proceeding,  or  any  contract  or  grant,  or  any  other 
disposition  of  property,  has  been  reduced  to  the  form  of  a 
document  or  series  of  documents,  no  evidence  may  be  given 
of  such  judgment  or  proceeding,  or  of  the  terms  of  such 
contract,  grant,  or  other  disposition  of  property,  except  the 
document  itself,  or  secondary  evidence  of  its  contents  in 
cases  in  which  secondary  evidence  is  admissible  under  the 
provisions  hereinbefore  contained.1  ISTor  may  the  contents 
of  any  such  document  be  contradicted,  altered,  added  to,  or 
varied  by  oral  evidence. 

Provided  that  any  of  the  following  matters  may  be 
proved — 

(1)  Fraud,  intimidation,  illegality,  want  of  due  execu- 
tion, want  of  capacity  in  any  contracting  party,  the  fact 

•  See  Note  XXXII.  i  Illustrations   (a)   and   (6). 


426  A  DIGEST   OF  [Part  II. 

that  it  is  wrongly  dated,2  want  or  failure  of  consideration, 
or  mistake  in  fact  or  law,  or  any  other  matter  which,  if 
proved,  would  produce  any  effect  upon  the  validity  of  any 
document,  or  of  any  part  of  it,  or  which  would  entitle  any 
person  to  any  judgment,  decree,  or  order  relating  thereto.3 
(2)  The  existence  of  any  separate  oral  agreement  as  to 
any  matter  on  which  a  document  is  silent,  and  which  is  not 
inconsistent  with  its  terms,  if  from  the  circumstances  of 
the  case  the  Court  infers  that  the  parties  did  not  intend  the 
document  to  be  a  complete  and  final  statement  of  the 
whole  of  the  transaction  between  them.4 

(3)  The  existence  of  any  separate  oral  agreement,  con- 
stituting a  condition  precedent  to  the  attaching  of  any 
obligation  under  any  such  contract,  grant  or  disposition  of 
property.5 

(4)  The  existence  of  any  distinct  subsequent  oral  agree- 
ment to  rescind  or  modify  any  such  contract,  grant,  or  dis- 
position of  property,  provided  that  such  agreement  is  not 
invalid  under  the  Statute  of  Frauds,  or  otherwise.6 

(5)  Any  usage  or  custom  by  which  incidents  not  ex- 
pressly mentioned  in  any  contract  are  annexed  to  contracts 
of  that  description ;  unless  the  annexing  of  such  incident 
to  such  contract  would  be  repugnant  to  or  inconsistent  with 
the  express  terms  of  the  contract.7 

ZReffell  v.  Reffell,  1866,  L.  R.  1  P.  &  D.  139.    Mr.  Starkie  extends 
this  to  mistakes  in  some  other  formal  particulars.    3  Star.  Ev.  787-8. 
3  Illustration  (c). 
*  Illustrations  (d)  and   (e). 

6  Illustrations  (f)  and  (g). 
e  Illustration  (h). 

7  Wigglesicorth  v.  Dallison,  1779,  and  note  thereto,  S.  L.  C.  528- 


Chap.  XII.]  THE   LAW   OF   EVIDENCE.  427 

Oral  evidence  of  a  transaction  is  not  excluded  by  the  fact 
that  a  documentary  memorandum  of  it  was  made,  if  such 
memorandum  was  not  intended  to  have  legal  effect  as  a 
contract,  or  other  disposition  of  property.8 

Oral  evidence  of  the  existence  of  a  legal  relation  is  not 
excluded  by  the  fact  that  it  has  been  created  by  a  document, 
when  the  fact  to  be  proved  is  the  existence  of  the  relation- 
ship itself,  and  not  the  terms  on  which  it  was  established 
or  is  carried  on.9 

The  fact  that  a  person  holds  a  public  office  need  not  be 
proved  by  the  production  of  his  written  or  sealed  appoint- 
ment thereto,  if  he  is  shown  to  have  acted  on  it.10 

Illustrations. 

(a)  A  policy  of  insurance  is  effected  on  goods  "  in  ships  from 
Surinam  to  London."  The  goods  are  shipped  in  a  particular  ship, 
which  is  lost. 

The  fact  that  that  particular  ship  was  orally  excepted  from  the 
policy  cannot  be  proved.n 

(b)  An  estate  called  Gotton  Farm  is  conveyed  by  a  deed  which  de- 
scribes it  as  consisting  of  the  particulars  described  in  the  first  di- 
vision of  a  schedule  and  delineated  in  a  plan  on  the  margin  of  the 
schedule. 

Evidence  cannot  be  given  to  show  that  a  close  not  mentioned  in  the 
schedule  or  delineated  in  the  plan  was  always  treated  as  part  of  Got- 
ton Farm,  and  was  intended  to  be  conveyed  by  the  deed.12 

560.  A  late  case  is  Johnson  v.  Raylton,  1881,  7  Q.  B.  D.  438,  in 
which  it  was  held  that  evidence  was  admissible  of  a  custom  that  in  a 
contract  with  a  manufacturer  for  iron  plates  he  warranted  them  to 
be  of  his  own  make. 

s  Illustration  (i). 

9  Illustration  (j). 

io  See  authorities  collected  in  1  Ph.  Ev.  449-50;  Taylor,  s.  171. 

11  Weston  v.  Ernes,  1808,  1  Tau.  115. 

12  Barton  v.  Dawes,  1850,  10  C.  B.  261-265. 


428  A   DIGEST   OF  [Pabt  II. 

(c)  A  institutes  a  suit  against  B  for  the  specific  performance  of  a 
contract,  and  also  prays  that  the  contract  may  be  reformed  as  to  one 
of  its  provisions,  as  that  provision  was  inserted  in  it  by  mistake. 

A  may  prove  that  such  a  mistake  was  made  as  would  entitle  him 
to  have  the  contract  reformed. 13 

(d)  A  lets  land  to  B,  and  they  agree  that  a  lease  shall  be  given  by 
A  to  B. 

Before  the  lease  is  given,  B  tells  A  that  he  will  not  sign  it  unless 
A  promises  to  destroy  the  rabbits.  A  does  promise.  The  lease  is 
afterwards  granted,  and  reserves  sporting  rights  to  A,  but  does  not 
mention  the  destruction  of  the  rabbits.  B  may  prove  A's  oral  agree- 
ment as  to  the  rabbits.14 

(e)  A  and  B  agree  orally  that  B  shall  take  up  an  acceptance  of 
A's,  and  that  thereupon  A  and  B  shall  make  a  written  agreement  for 
the  sale  of  certain  furniture  by  A  to  B.  B  does  not  take  up  the  ac- 
ceptance.   A  may  prove  the  oral  agreement  that  he  should  do  so.15 

(/)  A  and  B  enter  into  a  written  agreement  for  the  sale  of  an  in- 
terest in  a  patent,  and  at  the  same  time  agree  orally  that  the  agree- 
ment shall  not  come  into  force  unless  C  approves  of  it.  C  does  not 
approve.    The  party  interested  may  show  this.16 

(g)  A,  a  farmer,  agrees  in  writing  to  transfer  to  B,  another 
farmer,  a  farm  which  A  holds  of  C.  It  is  orally  agreed  that  the 
agreement  is  to  be  conditional  on  C's  consent.  B  sues  A  for  not 
transferrin:.'  the  farm.  A  may  prove  the  condition  as  to  C's  consent 
and  the  fact  that  he  does  not  consent.1? 

(h)  A  agrees  in  writing  to  sell  B  14  lots  of  freehold  land  and  make 
a  good  title  to  each  of  them.  Afterwards  B  consents  to  take  one  lot 
though  the  title  is  bad.  Apart  from  the  Statute  of  Frauds  this  agree- 
ment might  be  proved.18 

(i)  A  sells  B  a  horse,  and  orally  warrants  him  quiet  in  harness. 
A  also  gives  B  a  paper  in  these  words:  "Bought  of  A  a  horse  for 
171.  2s.  6d." 

13  Story's  'Equity  Jurisprudence,'  chap.  v.  ss.  153-162. 
i*  Morgan  v.   Griffiths,   1871,   L.  R.  6  Ex.   70;   and   see  Angell  v. 
Duke,  L.  R.  1875,  10  Q.  B.  174. 

MLindley  v.  Laccy,  1864,  17  C.  B.   (N.  S.)   578. 
16  Pym  v.  Campbell,  1856,  6  E.  &  B.  370. 
VWallis  v.  Littell,  1861,  11  C.  B.   (N.  S.)  369. 
18  Goss  v.  Lord  Nugent,  1833,  5  B.  &  Ad.  58,  65. 


Chap.  XII.]  THE    LAW   OF   EVIDENCE.  429 

B  may  prove  the  oral  warranty .19 

(;')  The  question  is,  whether  A  gained  a  settlement  by  occupying 
and  paying  rent  for  a  tenement.  The  fact3  of  occupation  and  pay- 
ment of  rent  may  be  proved  by  oral  evidence,  although  the  contract  is 
in  writing.20 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  85  et  seq., 
275  et  seq.;  McKelvey  on  Evidence,  pp.  366-373. 

The  main  rule. —  Seitz  v.  Brewers'  Co.,  141  U.  S.  510;  Wodock  v. 
Robinson,  148  Pa.  503;  Johnson  v.  Glover,  121  111.  283;  Boyd  v.  Paul, 
125  Mo.  9;  Tuttle  v.  Burgett,  53  0.  St.  498;  White  Sewing  Machine 
Co.  v.  Feeley,  72  Conn.  184;  Hildreth  v.  Hartford,  etc.,  Tramway 
Co.,  73  Conn.  631;  Perry  v.  Bigelow,  128  Mass.  129;  Bergin  v.  Wil- 
liams, 138  Mass.  544;  Colt  v.  Cone,  107  Mass.  285;  Munde  v.  Lambie, 
122  Mass.  336;  Tower  v.  Richardson,  6  Allen  (Mass.),  351;  Doyle 
v.  Dixon,  12  Allen  (Mass.),  576. 

Fraud,  mistake,  etc. — Fire  Assn.  v.  Wickham,  141  U.  S.  564;  Koch 
v.  Roth,  150  111.  212;  Paul  v.  Rider,  58  N.  H.  119;  Farwell  v.  Ensign, 
66  Mich.  600;  Kiel  v.  Choate,  92  Wis.  517;  Booth  v.  Robinson,  55  Md. 
419. 

Sustaining  text.  Brainerd  v.  Brainerd,  15  Conn.  586 ;  Park  Bros. 
d  Co.  V.  Blodgett  &  Clapp  Co.,  64  Conn.  38  ;  Fox  v.  Tabel,  66  Conn. 
397 ;  Todd  v.  Munson,  53  Conn.  589 ;  Feltz  v.  IFaZ/cer,  49  Conn.  98 ; 
Martin  v.  Clark,  8  R.  1.  389,  5  Am.  Rep.  586 ;  Fletcher  v.  Willard,  14 
Pick.  (Mass.)  464;  Case  v.  Gerrish,  15  Pick.  (Mass.)  49. 

The  writing  not  a  complete  statement. —  Stivers  v.  Stivers,  97  Cal. 
518;  Stahelin  v.  Lotve,  87  Mich.  124;  Band  v.  Ttyan  Co.,  63  Minn. 
539;  Piatt  v.  ^na  /ns.  Co.,  153  111.  113,  121;  Greening  v.  Steele, 
122  Mo.  287;  Caulfield  v.  Hermann,  64  Conn.  327;  Averill  v.  Sawyer, 
62  Conn.  568 ;  Pacific  Iron  Works  v.  Neichall,  34  Conn.  76 ;  Durkin 
v.  Cobleigh,  156  Mass.  108,  32  Am.  St.  Rep.  436;  A'eaZ  v.  2*7inf,  88 
Me.  73. 

Condition  precedent. —  Burke  v.  Dclaney,  153  U.  S.  228;  Smttft  v. 
Mussetter,  58  Minn.  159;  Wendlinger  v.  S»ii<ft,  75  Va.  309;  State  v. 
Want's,  57  Ark.  73;  Keener  v.  Cra^o,  81  Pa.  166;  Harrison  v.  Morton, 
83  Md.  456;  Fawnce  v.  State  Ins.  Co.,  101  Mass.  279;  Wilson  v.  Pow- 
ers, 131  Mass.  539;   Whitaker  v.  Salisbury,  15  Pick.    (Mass.)    534. 

19  Ailcn  v.  Prircfc,  1838,  4  M.  &  W.  140. 

20  R.  v.  ffuZJ,  1827,  7  B.  &  C.  611. 


43U  A  DIGEST   OF  [Pabt  II. 

Sustaining  text.  White  Sewing  Machine  Co.  v.  Feeley,  72  Conn. 
184;  Atwater  v.  Hewitt,  72  Conn.  238;  McFarland  v.  Sikes,  54  Conn. 
250;  Trunebull  v.  O'Hara,  71  Conn.  172;  Burns  &  Smith  Lumber  Co. 
v.  Doyle,  71  Conn.  742;  Carter  v.  Bellamy,  Kirby  (Conn.),  291;  .Herd 
v.  PisseZ,  1  Root  (Conn.),  260;  Bull  v.  Talcot,  2  Root  (Conn.),  120; 
Converse  v.  Moulton,  2  Root  (Conn.),  195;  Avery  v.  Chappel,  6 
Conn.  275;  Crocker  v.  Higgins,  7  Conn.  349;  flaZZ  v.  Rand,  8  Conn. 
573;  Reading  v.  Wesson,  8  Conn.  121;  Jones  v.  TForner,  11  Conn. 
49;  Baldicin  v.  Carter,  17  Conn.  205;  Beckley  v.  Munson,  22  Conn. 
312;  Clarke  v.  Tappin,  32  Conn.  67;  Mead  v.  Strouse,  41  Conn.  567; 
Pierpont  v.  Longden,  46  Conn.  499,  500;  Hotchkiss  v.  Higgins,  52 
Conn.  213;  WtncfteZZ-  v.  Coney,  54  Conn.  33;  1Fes£  Haven  Water 
Co.  v.  Redfield,  58  Conn.  40;  iLtna  v.  Killbride,  58  Conn.  117; 
Osborne  v.  Taylor,  58  Conn.  441;  Beard  v.  Boylan,  59  Conn.  187; 
Stanton  v.  tf.  Y.  <£  W.  P.  P.  22.  Co.,  59  Conn.  288;  Putter  v.  Barnes, 
60  Conn.   186. 

Subsequent  agreement. —  TYaZ  v.  Pi'%,  123  U.  S.  578;  Holloway  v. 
Pric7c,  149  Pa.  178;  Pratt's  Admr.  v.  E7.  S.,  22  Wall.  496,  507;  Cfturcfc 
t.  Florence  Iron  Works,  45  N.  J.  L.  129;  West  Haven  Water  Co.  v. 
Redfield,  58  Conn.  40;  Stearns  v.  PaH,  9  Cush.  (Mass.)  31;  Munroe 
v.  Perkins,  9  Pick.  (Mass.)  298;  Shaffer  v.  Sawyer,  123  Mass.  294. 

Custom.— Pa<7e  v.  Cole,  120  Mass.  37;  Robinson  v.  [7.  flf.,  13  Wall. 
363;  Pennell  v.  Trans.  Co.,  94  Mich.  247;  Patterson  v.  Crowther,  70 
Md.  124;  Leavitt  v.  Kennicott,  157  111.  235;  Kilgore  v.  Bulkeley,  14 
Conn.  392;  Panfc  of  Weto  Milford  v.  tfew>  Milford,  36  Conn.  100. 

Date. —  Pigott  v.  O'Halloran,  37  Minn.  415;  Bayley  v.  Taber,  5 
Mass.  286;  Orcutt  v.  Moore,  134  Mass.  48;  Part's  £.  M.  Co.  v.  Stone, 
131  Mass.  384. 

Consideration. —  Sustaining  text.  CZorpp  v.  Terrell,  20  Pick. 
(Mass.)  247;  Twomey  v.  Crowley,  137  Mass.  184;  O'Connell  v.  ireZty, 
114  Mass.  97. 

Conditional  delivery. —  Where  the  delivery  of  a  deed  is  not  abso- 
lute, parol  evidence  is  admissible  to  show  the  terms  upon  which 
it  was  delivered.     Cutherell  v.  Cutherell,  101  Ind.  375. 

Existence  of  legal  relation. —  The  official  character  of  a  person  may 
be  proved  by  parol ;  also,  that  he  was  the  deputy  of  an  officer.  Halt 
v.  Bishop,  78  Ind.  370,  372. 

Showing  existence  of  trust. —  To  establish  a  resulting  trust,  in 
opposition  to  the  face  of  the  deed,  and  to  the  answer  of  the  trustee, 
the  clearest  and  the  strongest  evidence  is  necessary.  Jenison  v. 
Graves,  2  Blackf.  440. 


Chap.  XII.]  THE  LAW   OF  EVIDENCE.  431 

An  attempt  to  establish,  by  parol,  a  resulting  trust  in  land  held 
by  an  absolute  conveyance  for  more  than  thirty  years,  held,  under 
the  circumstances,  not  established.     Collier  v.  Collier,  30  Ind.  32. 

Receipts. —  A  receipt  which  expresses  the  purpose  for  which  the 
money  is  paid  cannot  be  contradicted  by  oral  evidence.  Henry  v. 
Henry,  11  Ind.  236;  Tisloe  v.  Oraeter,  1  Blackf.  353. 

A  mere  receipt,  however,  may  be  explained,  controlled,  qualified,  or 
even  contradicted  by  parol  evidence.  Candy  v.  Hanmore,  76  Ind.  125, 
126;  Alcorn  v.  Morgan,  77  Ind.  184,  186;  Scott  v.  Scott,  105  Ind.  584, 
588;  Lyon  v.  Lenon,  106  Ind.  567,  569;  Adams  v.  Davis,  109  Ind.  10, 
21;  Ohio,  etc.,  Ry.  Co.  V.  Crunibo,  4  Ind.  App.  456,  459;  Lapping 
v.  Duffy,  65  Ind.  229;  Markel  v.  Spitler,  28  Ind.  488;  Lash  v.  Ren- 
dell,  72  Ind.  475;  Henry  v.  Henry,  11  Ind.  236;  Moore  v.  Korty,  11 
Ind.  341;  Beedle  v.  State,  62  Ind.  26;  Stewart  v.  Armel,  62  Ind.  593; 
Adams  v.  Davis,  109  Ind.  10;  Lemmon  v.  Reed,  14  Ind.  App.  655; 
Fox  v.  Cox,  20  Ind.  App.  61;  Robeson  v.  Wolf,  27  Ind.  App.  683; 
Sherry  v.  Picken,  10  Ind.  375;  Lewis  v.  Matlock,  3  Ind.  120; 
Markel  v.  Spitler,  28  Ind.  488;  Travelers'  Ins.  Co.  v.  Chappelcnc, 
83  Ind.  429,  435. 

Oral  evidence  is  admissible  to  contradict  the  entry  of  satisfaction 
of  a  mortgage.     Lapping  v.  Duffy,  65  Ind.  229. 

But  a  receipt  containing  the  contract  cannot  be  varied.  Alcorn 
v.  Morgan,  77  Ind.  184,  186;  McKernan  v.  Mayhew,  21  Ind.  291; 
Henry  v.  Henry,  11  Ind.  236. 

Where  a  receipt  was  for  a  sum  of  money  as  having  been  received 
"  on  a  decree  "  specified,  parol  evidence  was  not  admissible  to  prove 
that  it  was  given  in  full  of  the  principal  as  such.  Hull  v.  Butler,  1 
Ind.  167. 

Release. —  Where  a  release  was  explained  and  qualified  in  a  par- 
ticular case,  see  Scott  v.  Scott,  105  Ind.  584,  588. 

Payment. — Payment  may  be  shown  by  parol.  Bond  Co.  v.  Bruce, 
13  Ind.  App.  550;  Sivope  v.  Forney,  17  Ind.  385. 

Parol  evidence  is  admissible  to  show  whether  or  not  a  note  or 
check  given  was  in  payment.  Rhodes  v.  Webb-Jameson  Co.,  19  Ind. 
App.  195;  Orner  v.  Sattley,  etc.,  Co.,  18  Ind.  App.  122;  Sutton  v. 
Baldwin,  146  Ind.  361;  Cox  v.  Hayes,  18  Ind.  App.  220;  Wipperman 
v.  Hardy,  17  Ind.  App.  142;  Price  v.  Barnes,  7  Ind.  App.  1;  Combs 
v.  Bays,  19  Ind.  App.  263.  And  see  Zimmerman  v.  Adee,  126  Ind. 
15,  16. 

Admission  of  parol  evidence,  secondary  evidence. —  Parol  evidence 
is  admissible  of  the  time  of  the  execution  and  delivery  of  a  deed. 


432  A  DIGEST   OF  [Past  II. 

Davar  v.  Cardwell,  27  lnd.  478;  Uhl  v.  Moorhous,  137  lnd.  445; 
State  ex  rel.  v.  Gregory,  132  lnd.  387;  Forgerson  v.  Smith,  104  lnd. 
246.     But  see  WooMen,  v.  Wire,  110  lnd.  251. 

If  no  objection  is  made,  parol  evidence  is  admissible  to  prove  title 
to  real  estate.  Stockwell  v.  State,  101  lnd.  1;  Uhl  v.  Moorehous, 
137  lnd.  445,  448. 

And  the  contents  of  a  writ.     McFadden  v.  Fritz,  110  lnd.  1,  5. 

And  to  show  that  book  entries  were  not  made  although  these 
should  have  been.    Marks  v.  Orth,  121  lnd.  10,  12. 

The  fact  of  a  transaction,  evidence  by  a  writing  may  be  shown  by 
parol.    Stanley  v.  Sutherland,  54  lnd.  339. 

The  writing  evidencing  a  contract  parity  in  writing  is  admissible. 
Tomlinson  v.  Briles,  101  lnd.  538;  File  v.  Springel,  132  lnd.  312,  315. 

Practice. —  Admission  without  objection  of  parol  evidence  will  sus- 
tain a  finding,  although  it  would  have  been  held  incompetent  as  not 
the  best  available  evidence,  if  objection  had  been  made.  Riehl  v. 
Evansville,  etc.,  Assn.,  104  lnd.  70,  74;  Judd  v.  Small,  107  lnd.  398, 
399;  Ycager  v.  Wright,  112  lnd.  230,  237;  Indiana,  etc.,  Ry.  Co.  v. 
Finnell,  116  lnd.  414,  422;  Graves  v.  State,  121  lnd.  357,  359;  Poole 
v.  McGahan,  124  lnd.  583,  584;  Winemiller  v.  Thrash,  125  lnd.  353, 
354. 

Parol  evidence  of  the  contents  of  a  telegram  is  harmless,  where 
it  is  shown  that  the  information  contained  therein  was  orally  com- 
municated by  the  sender  of  the  message  to  the  receiver.  Terre  Haute, 
etc.,  R.  R.  Co.  v.  Stcckicell,  118  lnd.  98,  103. 

New   Jersey. 

General  rule. —  Parker  v.  Jameson,  32  X.  J.  Eq.  222;  Van  Syckle 
v.  Dalrymple,  32  N.  J.  Eq.  233,  826;  Naumberg  v.  Young,  44  N.  J.  L. 
331;  Clark  v.  Elizabeth,  40  N.  J.  L.  172;  Carlton  v.  Wine  Co.,  33 
N.  J.  Eq.  466;  Fire  Ins.  Co.  v.  Martin,  40  N.  J.  L.  568;  Bandholz 
v.  Judge,  62  N.  J.  L.  526;  Hanrahan  V.  National,  etc.,  Assn.,  66  N.  J. 
L.  80;  Ellison  v.  Gray,  55  N.  J.  Eq.  581;  Emery  v.  King,  64  N.  J.  L. 
529;  s<-lin,rl:  v.  Spring  Lake  Co.,  47  N.  J.  h.q.  44;  Van  Horn  v. 
Van  Horn.  \<.)  X.  J.  Eq.  327;  Leslie  v.  Leslie,  50  N.  J.  Eq.  155; 
Domes  v.  Insurance  Co.,  35  X.  J.  L.  366;  Chetwood  v.  Brittan,  2  N.  J. 
Eq.  438,  4  X.  J.  Eq.  334,  5  X.  J.  Eq.  628;  Locander  v.  Lounsbery, 
24  X.  J.  Eq.  417,  25  X.  J.  Eq.  554. 

Collateral  agreements. —  Collateral  agreements  on  a  distinct  sub- 
ject may  be  proved  by  parol,  but  not  when  relating  to  the  same 


Chap.  XII.]  THE  LAW   OF  EVIDENCE.  433 

subject.  Naumberg  v.  Young,  44  N.  J.  L.  331;  McTague  v.  Finne- 
gan,  54  N.  J.  Eq.  454. 

Contemporaneous  parol  understanding  not  admissible.  Hotel  Co. 
v.  I' Anson,  43  N".  J.  L.  442;  Remington  v.  Wright,  43  N.  J.  L.  451; 
Society  v.  Haight,  1  N.  J.  Eq.  394;  McKelway  v.  Cook,  4  N.  J.  Eq. 
102;  Todd  v.  Fhilhower,  4  Zab.  796;  Thibault's  Case,  4  Zab.  805. 

Oral  proof  admitted  to  show  a  contemporaneous  agreement  that 
a  promissory  note  might  be  satisfied  in  merchandise  and  that  it 
had  been  so  satisfied.     Buchanon  v.  Adams,  49  N.  J.  L.  636. 

An  offer  to  prove  such  a  contemporaneous  agreement  should  be 
full,  specific,  and  not  doubtful.  Middleton  v.  Griffith,  57  N.  J.  L. 
442. 

Supplementary  agreements. —  A  document  which  upon  its  face 
does  not  represent  a  complete  agreement  may  be  supplemented  by 
parol.  Naumberg  v.  Young,  44  N.  J.  L.  331;  Ryle  v.  Ryle,  41  N.  J. 
Eq.  582,  597;  Perrine  v.  Cooley,  39  N.  J.  L.  449;  Park  v.  Miller, 
27  N.  J.  L.  338;  Ackens  v.  Winston,  22  N.  J.  Eq.  444;  Saltar  v. 
Kirkbride,  1  South.  223. 

Offer  in  writing  to  do  work  for  a  gross  sum  accepted  orally;  evi- 
dence admitted  as  to  oral  agreement  as  to  time  of  payment.  Bruce 
v.  PearsalU  59  N.  J.  L.  62,  586. 

Substituted  agreements. —  Parol  evidence  is  admissible  to  prove 
a  subsequent  oral  agreement  rescinding  the  prior  written  one,  or 
substituting  a  different  one  therefor.  McKinstry  v.  Runk,  12  N.  J. 
Eq.  60;  Church  v.  Florence  Iron  Works,  45  N.  J.  L.  129;  Long  v. 
Hartwell,  34  N.  J.  L.  116.  And  see  Hogencamp  v.  Ackerman,  4  Zab. 
133;  French  v.  Griffin,  18  N.  J.  Eq.  279. 

A  promise  to  extend  the  time  of  payment  of  a  bond,  made  after 
its  maturity,  may  be  shown  by  parol.  Van  Syckel  v.  O'Hearn,  50 
N.  J.  Eq.   173. 

Rescission. —  A  written  contract,  while  still  executory,  may  be 
rescinded  by  parol.  Perrine  v.  Cheeseman,  6  Hal.  174;  Rodman  v. 
Zilley,  1  N.  J.  Eq.  320;  King  v.  Morford,  1  N.  J.  Eq.  274. 

Instrument  never  in  effect. —  Parol  evidence  admitted  to  show 
that  a  writing  was  not  in  fact  what  it  purported  to  be.  Glob'i 
Lamp  Co.  v.  Kern  Gaslight  Co.,  67  N.  J.  L.  279. 

Parol  evidence  admissible  to  show  that  a  deed  was  executed  con- 
ditionally and  that  the  condition  never  occurred.  Black  v.  Shreve, 
13  N.  J.  Eq.  455. 

28 


434  A  DIGEST   OF  [Pabt  II. 

Custom  and  usage. —  A  custom  or  usage  of  a  particular  trade  or 
business  is  admissible  to  explain  a  written  contract  but  not  to  con- 
tradict its  terms.  Steward  v.  Scudder,  4  Zab.  9'6;  Schenck  v. 
Griff  en,  38  N.  J.  L.  463;  Barton  v.  McKelway,  2  Zab.  165;  Smith 
v.  Clayton,  29  N.  J.  L.  357. 

A  usage  is  not  provable  by  parol  if  it  is  contrary  to  a  rule  of 
law.  Electric  Co.  v.  Elizabeth,  59  N.  J.  L.  134.  See  Overman  v. 
Bank,  30  N.  J.  L.   61,  31   N.  J.  L.  563. 

Agency. —  Parol  evidence  is  admissible  to  show  that  one  signed 
as  agent  of  an  undisclosed  principal,  both  in  favor  of  and  against 
such  principal.  Smith  v.  Felter,  63  N.  J.  L.  30;  Simanton  v.  Vliet, 
61  N.  J.  L.  595;  Borcherling  v.  Katz,  37  N.  J.  Eq.  150.  But  see 
Schenck  v.  Spring  Lake  Co.,  47  N.  J.  Eq.  44. 

Bill  of  lading. —  The  receipt  of  a  carrier  for  goods  is  not  conclu- 
sive as  to  their  quantity  or  condition.  Ayres  v.  Railroad  Co.,  29 
N.  J.  L.  397. 

Receipts. —  A  receipt  may  be  varied  by  parol  unless  it  be  also  a 
contract.  Swain  v.  Frazier,  35  N.  J.  Eq.  326;  Church  v.  Railroad 
Co.,  63  N.  J.  L.  470;  Kenny  v.  Kane,  50  N".  J.  L.  562;  Joslin  v. 
Giese,  59  N.  J.  L.  130;  Middlesex  v.  Thomas,  20  N.  J.  Eq.  39; 
Bird  v.  Davis,  14  N.  J.  Eq.  467;  Cole  v.  Taylor,  2  Zab.  59;  Crane  v. 
Ailing,  3  Green,  423;  Wildrick  v.  Sivain,  34  N.  J.  Eq.  167,  35  N.  J. 
Eq.  326 ;  Dorman  v.  Wilson,  39  N.  J.  L.  474. 

A  tax  receipt  is  only  a  voucher  and  does  not  estop  the  collector, 
as  against  a  bona  fide  purchaser,  from  showing  that  it  was  given 
for  a  check  which  was  never  honored.     Kahl  v.  Love,  37  N.  J.  L.  5. 

Consideration. —  Parol  evidence  of  a  different  or  an  additional 
consideration  is  admissible.  Silvers  v.  Potter,  48  N.  J.  Eq.  539; 
Morris  Canal  Co.  v.  Ryerson,  27  N.  J.  L.  457. 

Recital  of  consideration  in  a  deed  does  not  estop  one  from  show- 
ing that  other  consideration  was  agreed  to  be  paid.  Stearns  v. 
Stearns,  23  N.  J.  Eq.  167;  Herbert  v.  Schofield,  9  N.  J.  Eq.  492; 
Sprer  v.  Speer,  14  N.  J.  Eq.  240;  Lloyd  v.  Newell,  3  Hal.  296: 
Bolles  v.  Beach,  2  Zab.  680 ;  Morris  Canal  Co.  v.  Ryerson,  27  N.  J.  L. 
457. 

But  the  consideration  cannot  be  shown  to  be  wholly  different. 
Adams  v.  Bank.  10  N.  J.  Eq.  535. 

Acknowledgment  of  receipt  of  the  consideration  in  a  deed  is  prima 
facie  evidence  of  payment,  but  is  not  conclusive.  Herbert  v.  Scho- 
field, 9  N.  J.  Eq.  492;  Demarest  v.  Terhune,  18  N.  J.  Eq.  532. 


Chap.  XII.]  THE   LAW   OF  EVIDENCE.  435 

Statutes.—  Fraud  in  the  consideration  of  sealed  instruments. 
G.  S.  1895,  "  Evidence,"  16. 

When  forgery  or  fraud  in  execution  of  a  sealed  instrument  is 
the  issue,  parol  evidence  to  show  the  consideration  is  admissible. 
Wain  v.  Wain,  53  X.  J.  L.  429. 

A  seal  is  only  presumptive  evidence  of  a  consideration.  G.  S. 
1895,  "Evidence,"  72. 

Bills  and  notes. —  Wright  v.  Remington,  41  N.  J.  L.  48,  43  N.  J.  L. 
451;  Johnson  v.  Ramsay,  43  N.  J.  L.  279;  Van  Name  v.  Vander- 
veer,  2  N.  J.  L.  J.  125;  Honey  man  v.  Van  Nest,  4  X.  J.  L.  J.  151; 
Stiles  v.  Vandewater,  48  N.  J.  L.  67 ;  Uhler  v.  Browning,  28  X.  J.  L. 
82;  Kean  v.  Davis,  1  Zab.  683;  Paul  v.  Smith,  32  N.  J.  L.  13; 
Hutchinson  v.  Hendrickson,  29  N.  J.  L.  180;  Chaddock  v.  Vanneas, 
35  N.  J.  L.  517;  Watkins  v.  Kirkpatrick,  26  N.  J.  L.  84;  Durant  v. 
Banta,  27  X.  J.  L.  624;   Jacques  v.  McKnight,  26  X.  J.  L.  92. 

Signer  of  a  negotiable  instrument  not  allowed  to  show  that  he 
signed  as  agent.     Schenck  v.  Spring  Lake  Co.,  47  N.  J.  Eq.  44. 

Accommodation  maker  of  a  promissory  note  not  allowed  to  prove 
a  contemporaneous  parol  agreement  that  a  second  indorser  should 
be  liable  jointly  with  him.     Kling  v.  Kehoe,  58  N.  J.  L.  529. 

In  equity. —  Parol  evidence  admissible  in  equity  to  show  that  a 
deed  absolute  on  its  face  is  a  mortgage.  Lokerson  v.  Stillwell,  13 
N.  J.  Eq.  357;  Vandegrift  v.  Herbert,  18  N.  J.  Eq.  466;  Condit  v. 
Tichenor,  19  X.  J.  Eq.  43;  Van  Keuren  v.  McLaughlin,  19  N.  J.  Eq. 
187,  575;  Washburn  v.  McLaughlin,  19  N.  J.  Eq.  428;  Phillips  v. 
Hulsizer,  20  N.  J.  Eq.  308;  Melick  v.  Creamer,  25  N.  J.  Eq.  430; 
Sweet  v.  Parker,  22  X.  J.  Eq.  453;  Cake  v.  Shull,  45  X.  J.  Eq.  208; 
Pace  v.  Bartlcs,  47  X.  J.  Eq.  170;  Winters  v.  Earl,  52  X.  J.  Eq. 
52;  Vanderhoven  v.  Romaine,  56  X.  J.  Eq.  1.  Contra  at  law. 
Abbott  v.  Hanson,  4  Zab.  493. 

Parol  evidence  admissible  to  show  fraud,  mistake,  accident,  or 
surprise.     Stoutenburgh  v.   Tompkins,  9  X.  J.  Eq.  332. 

Proof  that  a  contract  was  induced  by  fraud  must  be  clear  and 
convincing,  in  order  to  justify  a  disregard  of  the  written  instru- 
ment.    Barr  v.  Chandler,  47  X.  J.  Eq.  532. 

Parol  evidence  admissible  to  establish  a  resulting  trust.  Heck 
v.  Beck,  43  X.  J.  Eq.  39.  Or  a  trust  where  the  deed  was  absolute 
on  its  face.     Parker  v.  Snyder,  31  X.  J.  Eq.  164. 

Other  illustrations. —  Fact  of  holding  a  public  office  may  be  shown 
by  parol.     Ritchie  v.   Widdemer,  59  X.  J.  L.   290. 


436  A  DIGEST  OF  [Pabt  II. 


An  omitted  name  cannot  be  supplied  by  parol.  Hoffman  v. 
Larue,  Pen.  685. 

Insurance  policy  not  to  be  varied  by  parol.  Martin  v.  Insurance 
Co.,  57  N.  J.  L.  623;  Bennett  v.  Insurance  Co.,  55  N.  J.  L.  377. 

Oral  evidence  not  admissible  to  alter  a  mortgage.  Van  Ness  v. 
Robbins,  47  N.  J.  Eq.  329. 

Maryland. 

General  rule. —  Fire  Ins.  Co.  v.  Langley,  62  Md.  196;  Jones  v. 
Sycr,  52  Md.  211;  Dixon  v.  Clayoille,  44  Md.  573;  Appleman  v. 
Fisher,  34  Md.  540;  McClernan  v.  Hall,  33  Md.  293;  Artz  v.  Grove, 
21  Md.  456;  Bladen  v.  Weils,  30  Md.  577;  Wesley  v.  Thomas,  6 
H.  &  J.  24;   Cassard  v.  McGlannan,  88  Md.   168. 

Declarations  at  the  time  of  execution  of  a  will  that  it  shall  be 
inoperative  on  a  certain  contingency  are  not  admissible.  Sewell  v. 
Slingluff,  57  Md.  537. 

Parol  evidence  is  not  admissible  to  change  the  name  of  a  bene- 
ficiary inserted  in  a  trust  deed.     Bank  v.   Harlan,  89   Md.   675. 

Previous  or  contemporaneous  parol  agreements  are  not  provable. 
Merritt  v.  Peninsular  Con.  Co.,  91  Md.  453. 

Where  a  contract  describes  land  sold  as  containing  about  sixty- 
five  acres,  the  vendee  cannot  prove  parol  representations  that  it 
contained  at  least  sixty-five  acres.  Balto.  Society  v.  Smith,  54  Md. 
187. 

1 1  may  be  for  the  jury  to  say  whether  a  contract  was  intended 
to  be  wholly  written  or  partly  written  and  partly  oral.  Roberts  v. 
Bonaparte,  73  Md.   191. 

If  the  writing  is  merely  a  part  of  the  execution  of  a  previous 
parol  agreement,  it  does  not  exclude  parol  testimony.  Harwood  v. 
Jones.   10  G.  &  J.  404. 

A  written  contract  cannot  be  explained  by  a  subsequent  letter  of 
one  of  the  parties.     Key  v.  Parnham,  6  H.  &  J.  418. 

Purpose  and  intent. —  Parol  evidence  is  not  admitted  to  show  a 
purpose  or  an  intent  in  inserting  a  term  of  a  contract  different  from 
the  one  manifested  in  the  writing  itself.  Barker  v.  Borzone,  48 
Md.  474:  F.ckcnrode  v.  Chemical  Co.,  55  Md.  51;  Farrow  v.  Hayes, 
51  Md.  408. 

Preliminary  negotiations. —  Evidence  of  preliminary  negotiations 
is  not  admissible,  except  to  prove  fraud,  accident,  or  mistake. 
Timms  v.  Shannon,  19  Md.  296;  King  v.  Clogg,  40  Md.  341;  Penni- 


Chap.  XII.]  THE  LAW   OF  EVIDENCE.  437 

man  v.  Winner,  54  Md.  127;  Dance  v.  Dance,  50  Md.  433;  Gorsuch 
v.  Rutledge,  70  Md.  272 ;  Franklin  v.  Cla/lin,  49  Md.  24. 

Conversations  not  admissible.  Lazear  v.  National  Union  Bank,  52 
Md.   78;    Warren  v.  Keystone  Co.,  05   Md.  547. 

Antecedent  letters  of  the  parties  are  not  admissible.  Badart  v. 
Foulon,  80   Md.   579. 

Merger  of  oral  in  written. —  A  verbal  contract  afterward  reduced 
to  writing  is  merged  in  the  writing  and  cannot  itself  be  proved. 
Mi«s  v.  Matthews,  7  Md.  315;   Worthington  v.  Bullitt.  6  Md.   172. 

Parol  understandings. —  When  the  contract  appears  to  be  complete, 
evidence  of  contemporaneous  parol  understandings  is  not  admis- 
sible. Delamater  v.  Chappcll.  48  Md.  244;  Neal  v.  Hopkins,  87  Md. 
19;  Blackistone  v.  BanA:,  87  Md.  302. 

When  a  contract  of  sale  is  in  writing,  an  oral  warranty  cannot 
be  proved.     Nally  v.  Long,  71  Md.  585;   King  v.  Clogg,  40  Md.  341. 

Additional  terms. —  An  additional  term  cannot  be  added  to  a 
written  contract  that  appears  to  be  complete.  Thompson  v.  Gortner, 
73  Md.  474  (sale  of  corn;  parol  agreement  as  to  quality  i  ;  Wil- 
liams v.  Kent,  07  Md.  350  (lease)  ;  Penniman  v.  Winner,  54  Md. 
127. 

Parol  evidence  is  admissible  to  show  that  a  written  memorandum 
of  sale  does  not  contain  all  the  terms  of  the  agreement,  not  to  vary 
or  contradict  it,  but  to  show  that  it  does  not  satisfy  the  require- 
ments of  the  Statute  of  Frauds.     Fisher  v.  Andrews,  94  Md.  40. 

Independent  collateral  agreements. —  Parol  proof  is  permissible  to 
show  an  agreement  collateral  to  a  written  one  and  not  inconsistent 
therewith  if  it  concerns  an  independent  matter.  Creamer  v.  Ste- 
phenson, 15  Md.  211;  McCreary  v.  McCreary,  5  G.  &  J.  147: 
Basshor  v.  Forbes,  30  Md.  154;  Walker  v.  Schindel,  58  Md.  360; 
S  tailings  v.  Gottschalk,  77  Md.  429;  Furnace  Co.  v.  Hooper,  90  Md. 
390. 

The  contract  in  a  bill  of  lading  may  be  added  to  by  proving  a 
parol  supplementary  agreement.     Aticell  v.  Miller,   11   Md.  348. 

When  a  written  contract  is  silent  as  to  the  manner  and  terms  of 
payment,  they  may  be  shown  by  parol.     Paul  v.  (koings,  32  Md.  402. 

Where  an  owner  has  contracted  for  the  building  of  a  house  for  a 
specified  sum,  it  may  be  shown  that  he  agreed  by  parol  to  pay  the 
workmen.     Andre  v.  Bodman,  13  Md.  241. 

It  may  be  shown  that  the  vendor  of  a  stock  of  goods  undertook 
by  parol  not  to  open  a  similar  store  in  the  town,  though  the  con- 
tract of  sale  be  in  writing.     Fusfing  v.  Sullivan.  41  Md.  102. 


438  A   DIGEST   OF  [Pabt  TI. 

Agency. —  Une  cannot,  in  order  to  escape  liability  himself,  show 
that  he  was  acting  as  an  agent.     Standford  v.  Horwitz,  49  Md.  525. 

Subsequent  agreements. —  Additions  and  changes  may  be  made  in 
a  written  contract  by  subsequent  parol  agreement.  Voates  v.  Bangs- 
ton,  5  Md.  121;  Franklin  v.  Long,  7  G.  &  J.  407;  Insurance  Co.  v. 
Hamill,  5  Md.  17U. 

A  subsequent  waiver  or  abandonment  may  be  shown  by  parol. 
Allen  v.  Sowerby,  37  Md.  410;  Kribs  v.  Jones,  44  Md.  396;  Fire 
Ins.  Co.  v.  Qusdorf,  43  Md.  506;  Herzog  v.  Sawyer,  61  Md.  344. 

Instrument  never  in  effect. —  It  may  be  shown  by  parol  that  a 
signed  instrument  was  not  intended  to  be  a  binding  contract.  Ad- 
vertising Co.  v.  Met.  Shoe  Co.,  91  Md.  61. 

It  may  be  shown  by  parol  that  an  instrument  is  void  or  was  deliv- 
ered on  condition.  Leppoc  v.  Union  Bank,  32  Md.  136;  Beall  v. 
Poole,  27  Md.  645;  Harrison  v.  Morton,  83  Md.  456. 

Fraud. —  Fraud,  mistake,  accident,  or  alteration  may  be  proved 
by  parol  testimony.  Hum  v.  Soper,  6  H.  &  J.  276;  Davis  v.  Ham- 
blin,  51  Md.  525;  Booth  v.  Robinson,  55  Md.  419. 

A  mistake  in  the  date  of  a  letter  may  be  shown  by  parol.  Stock- 
ham  v.  Stockham,  32  Md.  196. 

The  terms  of  a  deed  cannot  be  varied  by  parol,  except  to  show 
fraud,  accident,  or  mistake.  West  Boundary  Co.  v.  Bayless,  80  Md. 
495. 

In  equity. —  The  rule  is  the  same  in  equity  as  at  law;  parol  evi- 
dence is  admitted  to  show  fraud  or  a  trust.  Watkins  v.  Stockett, 
6  H.  &  J.  435;  Harwood  v.  Jones,   10  G.  &  J.  404. 

A  trust  cannot  be  raised  by  proof  of  parol  declarations  inconsist- 
ent witli  the  expressed  intention  of  a  deed.  Jones  v.  Slubey,  5 
H.  &  J.  372. 

Parol  evidence  is  receivable  in  equity  to  reform  an  instrument. 
Planters    Ins.  Co.  v.  Deford,  38  Md.  382. 

When  a  mortgage  is  attacked  for  fraud,  parol  evidence  of  its  true 
character,  its  purpose,  and  the  consideration  may  be  given.  Price 
v.  Cover,  40  Md.   102. 

A  deed  absolute  on  its  face  may  be  shown  to  be  a  mortgage. 
Artz  v.  Crave.  21  Md.  456:  Brown  v.  Reilly.  72  Md.  489;  Bank  of 
West,  v.  Whyte,  1  Md.  Ph.  536,  3  Md.  Ch.  508. 

Consideration. —  It  may  be  shown  by  parol  that  there  was  a  fur- 
ther consideration  not  mentioned  in  the  contract.  Fusting  v.  Sulli- 
van. 41   Md.  162.     See  Boyce  v.  Wilson.  32  Md.   122. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  439 

Receipts. —  A  receipt  for  money  paid  may  be  explained  or  contra- 
dicted by  parol.  Wolfe  v.  Hauver,  1  Gill,  84;  Trisler  v.  William- 
son, 4  H.  &  McH.  219;  liobinett  v.  Wilson,  8  Md.  180;  Cramer  v. 
Shriner,  18  Md.  140;  Shepherd  v.  Bevin,  9  Gill,  32. 

Nature  of  the  transaction. —  Where  a  written  contract  is  ambigu- 
ous, parol  evidence  is  admissible  to  show  in  what  capacity  tho 
parties  signed  and  the  true  nature  of  the  transaction.  Morrison  v. 
Baechtold,  93  Md.   319. 

Usages  and  customs. —  Usages  may  be  proved  in  connection  with 
a  written  contract;  they  must  be  general  and  well  established. 
Blake  v.  Stump,  73  Md.  160;  Barker  v.  Borzon,  48  Md.  474;  Duttng 
v.  Railroad  Co.,  66  Md.  120;  Williams  v.  Woods,  16  Md.  220;  Pat- 
terson v.  Crowther,  70'  Md.  124. 

Evidence  of  a  local  usage  is  admissible,  if  the  parties  can  be 
shown  to  have  known  of  it.     Insurance  Co.  v.  Wilson,  2  Md.  217. 

A  usage  cannot  be  proved  if  it  contradicts  the  terms  of  a  con- 
tract. Farmville  Ins.  Co.  v.  Butler,  55  Md.  233;  Rich  v.  Boyce,  39 
Md.  314;  B.  &  0.  R.  Co.  v.  Green,  25  Md.  72;  Gibney  v.  Curtis,  61 
Md.  192;  Bank  v.  Renshaw,  78  Md.  475;  Balto.  Baseball  Club  v. 
Pickett,  78  Md.  375. 

Time  for  objection. —  If  no  objection  is  made  on  the  trial  to  the 
introduction  of  parol  evidence,  no  objection  can  be  made  on  appeal. 
Sentman  v.  Gamble,  69  Md.  293. 

Pennsylvania. 

General  parol  evidence  rule. —  Heebner  v.  Worrall,  38  Pa.  376 ; 
Harbold  v.  Kuster,  44  Pa.  392;  Collins  v.  Baumgardner,  52  Pa. 
461;  Martin  v.  Berens,  67  Pa.  459;  Keener  v.  Bank  of  U.  S.,  2 
Pa.  237;  Leibert  v.  Heitz,  193  Pa.  590;  Storage  Co.  v.  Speck,  194 
Pa.  126;  Krueger  v.  Nicola,  205  Pa.  38;  Burton  v.  Forest  Oil  Co.. 
204  Pa.  349;  King  v.  Gas  Coal  Co.,  204  Pa.  628;  Ogden  v.  Traction 
Co.,  202  Pa.  480;  Kaufman  v.  Friday,  201  Pa.  178;  Dickson  v. 
Manufacturing  Co.,  179  Pa.  343. 

In  the  absence  of  fraud  or  mistake,  parol  evidence  is  not  admis- 
sible to  vary,  alter,  or  contradict  the  terms  of  a  written  instru- 
ment. Christine  v.  Whitehill,  16  S.  &  R.  98  (deed)  ;  Snyder  v. 
Snyder,  6  Binn.  483  (extent  of  land  conveyed)  ;  Colin m  v.  Hocker, 
1  Rawle.  108  (reservation  of  a  right  of  way)  ;  Collingtcood  v.  Ir- 
win, 3  Watts,  306  (covenant  of  warranty)  ;  Fulton  v.  Hood.  34  Pa. 
365    (bond   and    warrant   of   attorney)  ;    Hill   v.    Gaw,    4    Pa.    493 


440  A  DIGEST   OF  [Pabt  II. 

(check)  ;  Weisenberger  v.  Insurance  Co.,  56  Pa.  442  (insurance 
policy)  ;  Wodoclc  v.  Robinson,  148  Pa.  503  (lease)  ;  Stull  V.  Thomp- 
son, 154  Pa.  43  (manner  of  paying  rent)  ;  Gearing  v.  Carroll,  151  Pa. 
79    (contract  of  partnership). 

General  rule  (contracts). —  Phillips  v.  Meily,  106  Pa.  536;  Van 
Yoorhis  v.  Rea,  153  Pa.  19;  McClure  v.  Freight  Ry.  Co.,  90  Pa.  269; 
Horn  v.  Miller,  142  Pa.  557;  Halloivell  v.  Lierz,  171  Pa.  577; 
Dixon- Woods  Co.  v.  GZass  Co.,  169  Pa.  167;  Forrest  v.  Nelson,  108 
Pa.  481;  Ziegler  v.  McFarland,  147  Pa.  607. 

Parol  evidence  is  not  admissible  to  show  that  the  principal  sum 
secured  by  a  mortgage  was*  not  to  be  repaid.  Schiehl's  Estate,  179 
Pa.  308. 

Parol  testimony  is  admitted  to  explain  a  receipt  or  an  entry  in 
an  account-book,  or  to  show  the  purpose  for  which  a  note  was 
given.     Sheaffer  v.  Sensenig,  182  Pa.  634. 

A  parol  contract  with  a  school  district  may  be  proved  even 
though  the  minutes  contain  nothing  in  regard  to  it.  Furniture  Co. 
v.  School  Dist.,  158  Pa.  35;  Roland  v.  School  Dist.,  161  Pa.  102. 

Entries  in  the  books  of  one  of  the  parties  setting  out  the  contract 
do  not  render  parol  evidence  inadmissible.  Chapin  v.  Cambria  Iron 
Co.,  145  Pa.  478. 

Boundaries  in  deeds. —  The  boundaries  of  land  conveyed  by  deed 
cannot  be  shown  to  be  different  from  those  set  out  in  the  deed. 
Weiler  v.  Hottenstein,  102  Pa.  499;  Merriman  v.  Bush,  116  Pa. 
276;  Fuller  v.  Weaver,  175  Pa.  182. 

Courses  and  distances  may  be  shown  by  parol  to  vary  from  the 
monuments  on  the  ground.     Mageehan  v.  Adams,  2  Binn.   109. 

Consideration. —  Where  the  consideration  of  a  writing  consists  of 
a  verbal  promise  it  may  be  proved  by  parol.  Coal  Co.  v.  McShain, 
75  Pa.  238 ;  Shughart  v.  Moore,  78  Pa.  469 ;  Graver  v.  Scot t ,  80  Pa. 
88.  But  an  expressed  pecuniary  consideration  cannot  be  disproved. 
Allison  v.  Kurtz,  2  Watts,  185. 

Parol  evidence  is  admissible  to  show  another  or  a  greater  con- 
sideration than  the  one  expressed.  Jack  v.  Dougherty,  3  Watts, 
151;  Buckley's  Appeal,  48  Pa.  491;  Lewis  v.  Brewster,  57  Pa.  410; 
Taylor  v.  Preston,  79  Pa.  436;  Hay  den  v.  Mentzer,  10  S.  &  R.  329. 

The  actual  consideration  of  a  deed  may  be  shown  by  parol. 
Long  v.  Reed,  16  Pa.  Co.  Ct.  110;  Audenried  v.  Walker,  11  Phila. 
183;  Wolf  v.  Kohr,  133  Pa.  13;  Henry  v.  Zurflieh,  203  Pa.  440. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  441 

The  consideration  may  be  shown  not  to  be  love  and  affection  or  the 
email  sum  of  money  mentioned,  but  an  antenuptial  parol  agree- 
ment.    Barnes  v.  Black,  193  Pa.  447. 

Fraud. —  Parol  evidence  is  admissible  to  show  fraud.  Hurst  v. 
Kirkbride,  1  Binn.  616;  Campbell  v.  McClenachan,  6  S.  &  R.  171; 
Overton  v.  Tracey,  14  S.  &  R.  311  j  Hultz  v.  Wright,  16  S.  &  R. 
345;  Maute  v.  Gross,  56  Pa.  250;  Horn  v.  Brooks,  61  Pa.  407; 
Kostenbader  v.  Peters,  80  Pa.  438;   Chew  v.  Gillespie,  56  Pa.  309. 

Evidence  of  fraud  in  procuring  a  release  in  full.  Clayton  v.  Trac- 
tion Co.,  204  Pa.  536. 

A  contemporaneous  parol  agreement,  on  the  faith  of  which  a  note 
is  given,  is  admissible  in  an  action  on  the  note  to  prove  fraud. 
Coal  &  Iron  Co.  v.  Willing,  180  Pa.  165. 

Mistake. —  Parol  evidence  is  admissible  to  show  that  a  clause  was 
inserted  by  mistake.  Hamilton  v.  Asslin,  14  S.  &  R.  448;  Mehaffy 
v.  Share,  2  P.  &  W.  361;  Finney's  Appeal,  59  Pa.  398;  Insurance  Co. 
v.  Webster,  59  Pa.  227;  Schotte  v.  Meredith,  192  Pa.  159. 

Parol  evidence  is  admissible  to  show  a  term  of  the  contract 
omitted  by  mistake.  Hyndman  v.  Hogsett,  111  Pa.  643;  Schotte  v. 
Meredith,  197  Pa.  496. 

Mortgages. —  An  absolute  deed  may  be  shown  by  parol  to  be  a 
mortgage.  Maffitt  v.  Rynd,  69  Pa.  380;  Sweetzer's  Appeal,  71  Pa. 
264;  Danzeisews  Appeal,  73  Pa.  65;  Ballentine  v.  White,  77  Pa.  20; 
Brown  v.  Nickle,  6  Pa.  390;  Kunkle  v.  Wolfersberger,  6  Watts,  126. 
As  to  proving  a  trust,  see  Zimmerman  v.  Barber,  176  Pa.  1. 

Contemporaneous  parol  agreement  not  provable. —  Streator  v. 
Paxton,  201  Pa.  135;  Baker  v.  Flick,  200  Pa.  13;  Melcher  v.  Hill. 
194  Pa.  440;  Irwin  v.  Irwin,  169  Pa.  529;  Hunter  v.  McTIose,  100 
Pa.  38;  Car  Mfg.  Co.  v.  Lumber  Co.,  99  Pa.  605;  Callan  v.  Lukens, 
89  Pa.  134;   Chartiers  R.  Co.  v.  Hodgens,  85  Pa.  501. 

Parol  evidence  admitted  to  prove  a  contemporaneous  oral  agree- 
ment which  induced  the  execution  of  the  written  contract,  even 
though  its  effect  is  to  vary  the  writing.  Sutch's  Estate  (No.  1) , 
201  Pa.  305. 

Understanding  of  the  parties. —  What  one  understood  at  the  time 
cannot  be  introduced  to  vary  the  terms  of  a  written  contract.  Bart- 
ley  v.  Phillips,  179  Pa.  175. 

As  against  a  corporation  the  minutes  of  the  board  of  directors 
are  conclusive,  and  the  parol  understanding  of  individual  directors 
cannot  be  shown.     McOoican  v.  Consolidated  Co.,  181  Pa.  55. 


442  A   DIGEST   OF  [Pabt  II. 

A  contract  provides  that  a  dam  shall  be  built  "  in  a  good  and 
substantial  manner."  The  understanding  of  the  parties  may  be 
shown.     Quigley  v.  De  Haas,  98  Pa.  292. 

Negotiations  and  declarations. —  Conversations  and  declarations 
of  the  parties  are  not  provable.  Wallace  v.  Baker,  1  Binn.  610; 
Reichart  v.  Castator,  5  Binn.  109;  Christine  v.  Whitehill,  16  S.  &  R. 
98 ;  Ellmaker  v.  Insurance  Co.,  5  Pa.  183 ;  Yaryan  Co.  v.  Glue  Co., 
180  Pa.  480.  Negotiations  leading  up  to  the  contract  are  admissible 
only  to  prove  fraud  or  trust.  McGinity  v.  McGinity,  63  Pa.  38. 
Subsequent  declarations  are  admissible  only  to  corroborate.  Rearick 
v.  Rearick,  15  Pa.  66;   Wager  v.  Chew,  15  Pa.  323. 

Bills  and  notes. —  Heydt  v.  Frey,  13  Atl.  475;  Bank  v.  Stadelman, 
153  Pa.  634;  Allen  v.  Clarke,  132  Pa.  40;  Haner  v.  Patterson,  84 
Pa.  274;  Temple  v.  Baker,  125  Pa.  634. 

Not  admissible  to  show  that  a  note  was  to  be  renewable  at  ma- 
turity. Anspach  v.  Bast,  52  Pa.  356;  Hacker  v.  Refining  Co.,  73 
Pa.  93;   Wharton  v.  Douglass,  76  Pa.  273. 

Parol  evidence  allowed  to  show  that  one  of  several  joint  makers 
of  a  note  was  in  reality  a  mere  surety.     Miller  v.  Stem,  2  Pa.  286. 

Receipts. —  A  mere  acknowledgment  of  payment  may  be  ex- 
plained or  contradicted  by  parol.  Batdorf  v.  Albert,  59  Pa.  59; 
Shoemaker  v.  Stiles,  102  Pa.  549;  Jessop  v.  Ivory,  172  Pa.  44; 
Borlin  v.  Highberger,  104  Pa.  143;  Shepherd  v.  Busch,  154  Pa.  149; 
Haverly  v.  Railway  Co.,  125  Pa.  116;  Mason  Fruit-Jar  Co.  v. 
Smucker,  174  Pa.  87;  Atkins  v.  Payne,  190  Pa.  5;  Sargeant  v.  In- 
surance Co.,  189  Pa.  341 ;  BerryghilVs  Appeal,  35  Pa.  245. 

Parol  evidence  is  admissible  to  show  that  a  note  was  taken  as 
collateral  security  only  and  not  in  full  settlement,  even  though  a 
receipt  in  full  was  given.  Trymby  v.  Andress,  175  Pa.  6;  Shepherd 
v.  Busch,  154  Pa.  149. 

When  a  receipt  is  a  part  of  a  written  contract  it  cannot  be  varied 
by  parol.    Wood  v.  Donahue,  94  Pa.  128;  Jessop  v.  Ivory,  172  Pa.  44. 

Acknowledgment  of  payment  in  a  contract  for  the  conveyance  of 
land  is  not  conclusive  of  the  fact  of  payment.  Watson  v.  Blaine, 
12  S.  &  R.  131. 

A  receipt  is  prima  facie  evidence  of  payment  as  stated.  Barclay 
v.  Morrison,  16  S.  &  R.  129;  Hamsher  v.  Kline,  57  Pa.  397. 

A  receipt  in  full  is  not  conclusive  of  a  settlement.  Horton's  Ap- 
peal, 38  Pa.  294;   Hamsher  v.  Kline,  57  Pa.  397. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  443 

Receipt  in  full  may  act  as  an  estoppel  as  against  third  parties. 
Ebert  v.  Johns,  206  Pa.  395. 

Acknowledgment  of  payment  in  a  deed  is  not  conclusive  of  pay- 
ment. Hamilton  V.  McGuire,  3  i5.  &  R.  355;  Weigley  v.  Weir,  7 
S.  &  R.  309.  Nor  is  it  conclusive  as  to  the  amount  paid.  Straw- 
bridge  v.  Cartledge,  7  W.  &  S.  394. 

Bills  of  lading. —  Bill  of  lading  not  to  be  varied  by  parol.  Keller 
v.  B.  d  0.  It.  Co.,  196  Pa.  57. 

A  bill  of  lading  is  not  such  a  contract  that  omitted  provisions 
may  not  be  supplied  by  parol.     Steamboat  Co.  v.  Brown,  54  Pa.  77. 

Records. —  Contents  of  a  judgment  record  cannot  be  proved  by 
parol.     Walsh  v.  Watrous,  2  Law  T.   (N.  S.)    7. 

A  record  cannot  be  contradicted  by  parol.  Hoffman  v.  Coster,  2 
Whart.  453;  Graham  v.  Smith,  25  Pa.  323.  But  a  record  may  be 
impeached  for  fraud.     Thome  v.  Insurance  Co.,  80  Pa.   15. 

Contract  on  its  face  incomplete. —  Where  a  writing  does  not  pur- 
port to  represent  all  the  terms  of  a  contract,  those  not  appearing 
may  be  proved  by  parol.  Schwab  v.  Ginkinger,  181  Pa.  8;  Selig  v. 
Rehfuss,  195  Pa.  200;  Dickson  v.  Harlman  Mfg.  Co.,  179  Pa.  343. 

Condition  precedent. —  Keener  v.  Crago,  81  Pa.  166;  Cullmans  v. 
Lindsay,  114  Pa.  170. 

Waiver. —  A  parol  waiver  of  a  written  agreement  may  be  proved. 
Hyde  v.  Kiehl,  183  Pa.  414. 

Substituted  and  subsequent  contracts. —  A  written  contract  may 
be  rescinded  by  parol  and  a  new  one  substituted  for  it.  Harrokl 
v.  McDonald,  194  Pa.  359;  Beatty  v.  Larzelere,  194  Pa.  605;  Machine 
Co.  v.  Coal  Co.,  204  Pa.  177. 

A  subsequent  independent  contract  may  be  proved  even  though  it 
vary  or  contradict  a  writing.  Whitney  v.  Shippen,  89  Pa.  22 :  Ileil- 
man  v.  Weinman,  139  Pa.  143;  Holloway  v.  Frick,  149  Pa.  178. 

A  subsequent  parol  agreement  with  different  subject-matter  may 
be  proved.     Collins  v.  Barnes,  83  Pa.  15. 

The  subsequent  agreement  requires  a  new  consideration.  Malone 
V.   Dougherty,  79  Pa.  46. 

Payment. —  Payment  may  be  proved  by  parol.  Fowler  v.  Smith, 
153  Pa.  639. 

Date. —  The  real  time  when  a  deed  was  executed  may  be  shown. 
Geiss  v.  Odenheimer,  4  Yeates,  278. 


444  A   DIGEST   OF  [Pabt  II 


Article  91.* 

what  evidence  may  be  given  for  the  interpretation 
of  documents. 

(1)  Putting  a  construction  upon  a  document  means  as- 
certaining the  meaning  of  the  signs  or  words  made  upon  it, 
and  their  relation  to  facts. 

(2)  In  order  to  ascertain  the  meaning  of  the  signs  and 
words  made  upon  a  document,  oral  evidence  may  be  given 
of  the  meaning  of  illegible  or  not  commonly  intelligible 
characters,  of  foreign,  obsolete,  technical,  local,  and  provin- 
cial expressions,  of  abbreviations,  and  of  common  words 
which,  from  the  context,  appear  to  have  been  used  in  a 
peculiar  sense;21  but  evidence  may  not  be  given  to  show 
that  common  words,  the  meaning  of  which  is  plain,  and 
which  do  not  appear  from  the  context  to  have  been  used  in 
a  peculiar  sense,  were  in  fact  so  used.22 

(3)  If  the  words  of  a  document  are  so  defective  or  am- 
biguous as  to  be  unmeaning,  no  evidence  can  be  given  to 
show  what  the  author  of  the  document  intended  to  say.23 

(4)  In  order  to  ascertain  the  relation  of  the  words  of  a 
refers,  or  may  probably  have  been  intended  to  refer,24  or 
which  identifies    any  person  or    thing  mentioned    in  it. 

*  See  Note  XXXIII. 

ai  Illustrations  (a)    (6)    (c). 

22  Illustration  (a). 

23  Illustrations  (e)  and  (/). 

24  See  all  the  Illustrations. 

25  Illustration  (g). 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  445 


Such  facts  are  hereinafter  called  the  circumstances  of  the 


case.20 


(  5  )  If  the  words  of  a  document  have  a  proper  legal  mean- 
ing, and  also  a  less  proper  meaning,  they  must  be  deemed 
to  have  their  proper  legal  meaning,  unless  such  a  construc- 
tion would  be  unmeaning  in  reference  to  the  circumstances 
of  the  case,  in  which  case  they  may  be  interpreted  accord- 
ing to  their  less  proper  meaning.27 

(6)  If  the  document  has  one  distinct  meaning  in  refer- 
ence to  the  circumstances  of  the  case,  it  must  be  construed 
accordingly,  and  evidence  to  show  that  the  author  intended 
to  express  some  other  meaning  is  not  admissible.28 

(7)  If  the  document  applies  in  part  but  not  with  accu- 
racy or  not  completely  to  the  circumstances  of  the  case,  the 
Court  may  draw  inferences  from  those  circumstances  as  to 
the  meaning  of  the  document,  whether  there  is  more  than 
one,  or  only  one  thing  or  person  to  whom  or  to  which  the 
inaccurate  description  may  equally  well  apply.  In  such 
cases  no  evidence  can  be  given  of  statements  made  by  the 
author  of  the  document  as  to  his  intentions  in  reference  to 
the  matter  to  which  the  document  relates,  though  evidence 
may  be  given  as  to  his  circumstances,  and  as  to  his  habitual 
use  of  language  or  names  for  particular  persons  or 
things.29 


2<5  As  to  proving  facts  showing  the  knowledge  of  the  writer,  and  for 
an  instance  of  a  document  which  is  not  admissible  for  that  purpose, 
*ee  Adie  v.  Clark,  1876,  3  Ch.  Div.  134,  142. 

27  Illustration  (/?,). 

28  Illustration   (t). 

59  Illustrations  (k)   {I)   (m). 


446  A   DIGEST   OF  [Pabt  II. 

(8)  If  the  language  of  the  document,  though  plain  in 
itself,  applies  equally  well  to  more  objects  than  one,  evi- 
dence may  be  given  both  of  the  circumstances  of  the  case 
and  of  statements  made  by  any  party  to  the  document  as 
to  his  intentions  in  reference  to  the  matter  to  which  the 
document  relates.30 

(9)  If  the  document  is  of  such  a  nature  that  the  Court 
will  presume  that  it  was  executed  with  any  other  than  its 
apparent  intention,  evidence  may  be  given  to  show  that  it 
was  in  fact  executed  with  its  apparent  intention.31 

Illustrations. 

(a)  A  lease  contains  a  covenant  as  to  "  ten  thousand  rabbits." 
Oral  evidence  to  show  that  a  thousand  meant,  in  relation  to  rabbits, 
1200,  is  admissible.32 

(b)  A  sells  to  B  "  1170  bales  of  gambier."  Oral  evidence  is  admis- 
sible to  show  that  a  "  bale  "  of  gambier  is  a  package  compressed,  and 
weighting  2  cwt.33 

(c)  A,  a  sculptor,  leaves  to  B  "  all  the  marble  in  the  yard,  the  tools 
in  the  shop,  bankers,  mod  tools  for  carving."  Evidence  to  show 
whether  "  mod "  meant  models,  moulds,  or  modelling-tools,  and  to 
show  what  bankers  are,  may  be  given.34 

(d)  Evidence  may  not  be  given  to  show  that  the  word  "  boats,"  in 
a  policy  of  insurance,  means  "  boats  not  slung  on  the  outside  of  the 
ship  on  the  quarter."35 

(e)  A  leaves  an  estate  to  K,  L,  M,  &c,  by  a  will  dated  before  1838. 
Eight  years  afterwards  A  declares  that  by  these  letters  he  meant  par- 
ticular persons.   Evidence  of  this  declaration  is  not  admissible.   Proof 

30  Illustrations  (n)    (o). 

31  Illustration  (p). 

32  Smith  v.  Wilson,  1832,  3  B.  &  Ad.  728. 
MGorrissen  v.  Perrin,  1857,  2  C.  B.   (N.  S.)   681. 

34  Goblet  v.  Beechey,  1831,  3  Sim.  24;  2  Russ.  &  Myl.  624. 

35  Blackett  v.  Royal  Exchange  Co.,  1832,  2  C.  &  J.  244. 


Chap.  XII.]  TEE  LAW  OF  EVIDENCE.  447 

that  A  was  in  the  habit  of  calling  a  particular  person  M  would  have 
been  admissible.36 

(/)   A  leaves  a  legacy  to  .     Evidence  to  show  how  the  blank 

was  intended  to  be  filled  is  not  admissible.ST 

(g)  Property  was  conveyed  in  trust  in  1704  for  the  support  of 
"  Godly  preachers  of  Christ's  holy  Gospel."  Evidence  may  be  given  to 
show  what  class  of  ministers  were  at  the  time  known  by  that  name.38 

(A)  A  leaves  property  to  his  "  children."  If  he  has  both  legitimate 
and  illegitimate  children  the  whole  of  the  property  will  go  to  the 
legitimate  children.  If  he  has  only  illegitimate  children,  the  prop- 
erty may  go  to  them,  if  he  cannot  have  intended  to  give  it  to  unborn 
legitimate  children.39 

(t)  A  testator  leaves  all  his  estates  in  the  county  of  Limerick  and 
city  of  Limerick  to  A.  He  had  no  estates  in  the  county  of  Limerick, 
but  he  had  estates  in  the  county  of  Clare,  of  which  the  will  did  not 
dispose.  Evidence  cannot  be  given  to  show  that  the  words  "  of  Clare  " 
had  been  erased  from  the  draft  by  mistake,  and  so  omitted  from  the 
will  as  executed.40 

(/)  A  leaves,  a  legacy  to  "Mrs.  and  Miss  Bowden."  No  such  per- 
sons were  living  at  the  time  when  the  legacy  was  made,  but  Mrs. 
Washburne,  whose  maiden  name  had  been  Bowden,  was  living,  and 
had  a  daughter,  and  the  testatrix  used  to  call  them  Bowden.  Evi- 
dence of  these  facts  was  admitted.*! 

(A;)  A  devises  land  to  John  Hiscocks,  the  eldest  son  of  John  His- 
cocks.  John  Hiscocks  had  two  sons,  Simon,  his  eldest,  and  John,  his 
second  son,  who,  however,  was  the  eldest  son  by  a  second  marriage. 
The  circumstances  of  the  family,  but  not  the  testator's  declarations 
of  intention,  may  be  proved  in  order  to  show  which  of  the  two  was 
intended.42 

36  Clayton  v.  Lord  Nugent,  1844,  13  M.  &  W.  200;  see  207-8. 

StBaylis  v.  A.  G.,  1741,  2  Atk.  239.  In  In  re  Bacon's  Will,  Camp 
v.  Coe,  1886,  31  Ch.  Div.  460,  blanks  were  left  in  a  will,  and  parol 
evidence  was  admitted  to  rebut  any  presumption  arising  from  them 
against  the  primd  facie  claim  of  the  executor  to  the  residue  undis- 
posed of. 

38  Shore  v.  Wilson,  1842,  9  C.  &  F.  356,  365  et  seq. 

39  Wig.  Ext.  Ev.  pp.  18  and  19,  and  note  of  caseB. 

40  Miller  v.  Travers,  1832,  8  Bing.  244. 
«  Lee  v.  Pain,  1845,  4  Hare,  251-3. 

42  Doe  v.  Hiscocks,  1839,  5  M.  &  W.  363.  Cf.  In  re  Fish,  Ingram  v. 
Rayner,  [18941,  2  Ch.  D.  83,  where  F  devised  property  to  his  niece, 


448  A  DIGEST   OF  [Past  II. 

(1)  A  devises  property  to  Elizabeth,  the  natural  daughter  of  B.  B 
has  a  natural  son  John,  and  a  legitimate  daughter  Elizabeth.  The 
Court  may  infer  from  the  circumstances  under  which  the  natural 
child  was  born,  and  from  the  testator's  relationship  to  the  putative 
father,  that  he  meant  to  provide  for  John.*3 

( m )  A  leaves  a  legacy  to  his  niece,  Elizabeth  Stringer.  At  the  date 
of  the  will  he  had  no  such  niece,  but  he  had  a  great-great-niece 
named  Elizabeth  Jane  Stringer.  The  Court  may  infer  from  these  cir- 
cumstances that  Elizabeth  Jane  Stringer  was  intended ;  but  they  may 
not  refer  to  instructions  given  by  the  testator  to  his  solicitor,  show- 
ing that  the  legacy  was  meant  for  a  niece,  Elizabeth  Stringer,  who 
had  died  before  the  date  of  the  will,  and  that  it  was  put  into  the  will 
by  a  mistake  on  the  part  of  the  solicitor.** 

(n)  A  devises  one  house  to  George  Gord  the  son  of  George  Gord, 
another  to  George  Gord  the  son  of  John  Gord,  and  a  third  to  George 
Gord  the  son  of  Gord.  Evidence  both  of  the  circumstances  and  of  the 
testator's  statements  of  intention  may  be  given  to  show  which  of  the 
two  George  Gords  he  meant.45 

(o)  A  appointed  "  Percival  of  Brighton,  Esquire,  the  father," 

one  of  his  executors.  Evidence  of  surrounding  circumstances  may  be 
given  to  show  who  was  meant,  and  (probably)  evidence  of  state- 
ments of  intention.46 

(p)  A  leaves  two  legacies  of  the  same  amount  to  B,  assigning  the 
same  motive  for  each  legacy,  one  being  given  in  his  will,  the  other  in 
a  codicil.  The  Court  presumes  that  they  are  not  meant  to  be  cumu- 
lative, but  the  legatee  may  show,  either  by  proof  of  surrounding  cir- 
cumstances, or  of  declarations  by  the  testator  that  they  were.*? 

E  W.  He  had  no  niece  so  named,  but  had  two  grand-nieces  of  that 
name,  one  legitimate,  the  other  illegitimate;  evidence  of  the  sur- 
rounding circumstances  tending  to  show  that  the  illegitimate  niece 
was  meant  was  not  admitted. 

«  Ryall  v.  Hannam,  1847,  10  Beav.  536. 

**  Stringer  v.  Gardiner,  1S59,  27  Beav.  35;  4  De  G.  &  J.  4«8. 

4*Doe  v.  Needs,  1836,  2  If.  &  W.  129. 

*r>In  the  goods  of  de  Rosaz,  1877,  L.  R.  2  P.  D.  66. 

<T  Per  Leach,  V.C.  in  Hurst  v.  Leach,  1821,  5  Madd.  351,  360-1. 
The  rule  in  this  case  was  vindicated,  and  a  number  of  other  cases 
both  before  and  after  it  were  elaborately  considered  by  Lord  St.  Leon- 
ards, when  Chancellor  of  Ireland,  in  Hall  v.  Hall,  1841,  1  Dru.  & 
War.  94,  111-133.     See,  too,  Jenner  v.  Hinch,  1879,  5  Prob.  Div.  106. 


Chaf.  XII.]  THE  LAW  OF  EVIDENCE.  449 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  275  et  seq.; 
17  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  1  et  seq.;  1st 
ed.,  vol.  17,  p.  419  et  seq. 

Actual  intention. —  The  actual  intention  cannot  be  shown  by  parol 
evidence.  Pingry  v.  IVatkins,  17  Vt.  379;  Kelley  v.  Kelley,  25  Pa.  St. 
406;  Palmer  v.  Albee,  50  la.  429;  Taylor  v.  Morris,  90  N.  C.  614; 
Marshall  v.  Haney,  4  Md.  498,  59  Am.  Dec.  92;  Crooks  v.  Whitford,  47 
Mich.  283;  Adams  v.  Morgan,  150  Mass.  143. 

Identifying  persons  and  things. — Aldrich  v.  Gaskill,  10  Cush. 
(Mass.)  55;  Melcher  v.  Chase,  105  Mass.  125;  Cleverly  v.  Cleverly, 
124  Mass.  314;  Bergin  v.  Williams,  138  Mass.  544;  Scanlon  v.  Wright, 
13  Pick.  (Mass.)  523;  Peabody  v.  Broivn,  10  Gray  (Mass.),  45; 
Kingsford  v.  Bood,  105  Mass.  495;  Simpson  v.  Dix,  131  Mass.  179; 
Watsoti  v.  Neio  Milford,  72  Conn.  565. 

E  W  and  E  W,  Junior,  father  and  son,  lived  in  the  same  town.  The 
latter  bought  a  piece  of  land,  and  received  a  deed  of  it,  drawn  to  E  W. 
Held,  that  he  could  show  that  it  was  intended  to  be  made  to  himself  — 
E  W,  Junior,  both  because  the  ambiguity,  arising  by  parol,  could  be 
explained  by  parol,  and  because  the  deed  would  otherwise  be  inopera- 
tive for  want  of  delivery.     Coit  v.  Starkweather,  8  Conn.  294. 

Under  the  rule  which  admits  parol  evidence  in  cases  of  ambiguity, 
to  aid  in  the  construction  of  a  will,  it  is  necessary  that  the  words  of 
the  will  should  describe  accurately  the  subject  or  object  of  the  gift, 
and  that  the  parol  evidence  should  go  only  to  show  which  of  cer- 
tain properly-described  subjects  or  objects  was  intended.  Fairfield  v. 
Laivson,  50  Conn.  510. 

Meaning  of  words,  etc. —  McDonough  v.  Jolly,  165  Pa.  St.  542  ;  Con- 
verse v.  Wcad,  142  111.  132:  Walrath  v.  Whittekind,  26  Kan.  482; 
Confederate  Note  Case,  19  Wall.  548;  Sloops  v.  Smith,  100  Mass.  63, 
66,  1  Am.  Rep.  857. 

The  meaning  of  a  term  in  a  certain  business  may  be  shown  by  parol 
evidence.  Parker  v.  Selden,  69  Conn.  552:  Fuller  v.  Metropolitan  Life 
Ins.  Co.,  70  Conn.  647. 

The  parties  had  entered  into  a  written  contract  which  provided 
that  one  of  them  should  "  work  "  a  certain  street,  and  the  alleged 
breach  of  this  agreement  formed  one  of  the  claims  submitted  to  the 

29 


450  A   DIGEST  OF  [Part  II. 

arbitrators.  Held,  that  parol  evidence  was  admissible  to  show 
the  special  meaning  of  this  term  as  understood  by  the  parties  at 
the  time  of  making  the  contract;  and  that  such  evidence  was  not 
limited  to  expert  testimony.  In  re  Curtis-Castle  Arbitration,  64 
Conn.  514,  515. 

A  note  payable  "  in  cotton  yarn,  at  the  wholesale  factory  prices," 
may  be  explained  by  evidence  that,  by  the  usage  of  manufacturers 
and  dealers  in  cotton  yarn,  the  term  "  wholesale  factory  prices " 
means  a  different  scale  of  prices  from  the  actual  market  wholesale 
prices.     Avery  v.  Stewart,  2  Conn.  73. 

Surrounding  circumstances. — Reed  v.  Ins.  Co.,  95  U.  S.  23 ;  Gilmor's 
Estate,  154  Pa.  St.  523;  Perry  v.  Bowman,  151  111.  25;  Andrews  v. 
Dyer,  81  Me.  104;  Barry  v.- Bennett,  7  Mete.  (Mass.)  354;  Hurley  v. 
Brown,  98  Mass.  545;  Russell  v.  Lathrop,  117  Mass.  424. 

It  is  a  familiar  rule  that  a  deed  shall,  if  possible,  be  so  construed 
as  to  effectuate  the  intention.  In  arriving  at  that  intention  it  is  al- 
ways admissible  to  consider  the  situation  of  the  parties  and  the  cir- 
cumstances, and  every  part  of  the  writing  should  be  considered  with 
the  help  of  that  evidence.    Bartholomew  v.  Muzzy,  61  Conn.  393. 

The  defendant  offered  evidence  of  a  conversation  between  the 
agent  of  the  plaintiffs  and  himself  before  a  certain  written  agree- 
ment was  made,  as  to  the  kind  and  nature  of  employment  to  be 
given  him  under  the  agreement.  Held,  that,  so  far  as  the  evidence 
went  to  contradict,  add  to  or  vary  the  written  agreement  it  was 
inadmissible,  but  that  it  was  admissible  so  far  as  it  tended  to  show 
the  surrounding  circumstances  at  the  time  the  agreement  was  made. 
Excelsior  Needle  Co.  v.  Smith,  61  Conn.  59. 

Indefiniteness  as  to  object  intended. —  Where  the  grantor  in  a 
deed  described  the  premises  as  the  farm  on  which  he  then  dwelt, 
held,  that  parol  evidence  was  admissible  to  show  that  at  that  time 
a  certain  parcel  of  land  subsequently  claimed  by  the  grantee,  as 
parcel  of  the  farm,  was  uncultivated  and  uninclosed,  and  divided 
from  the  farm  by  a  highway,  and  that  the  grantor  ever  retained, 
the  exclusive  possession  of  it.  Doolittle  v.  Blakesley,  4  Day  (Conn.), 
272,  465.     See  Bennett  v.  Pierce,  28  Conn.  315. 

More  proper  meaning  of  language. —  Appeal  of  Washington  &  Lee 
Univ.,  Ill  Pa.  St.  572;  Covert  v.  Sebern,  73  la.  564;  Thomell  v. 
Brockton,  141  Mass.  157;  Hatch  v.  Douglas,  48  Conn.  110,  40  Am. 
Rep.  154;  First  Society  v.  Piatt,  12  Conn.  88;  Bulkley  v.  Chapman, 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  451 

9  Conn.  8 ;  Mullen  v.  Reed,  64  Conn.  248 ;  Davies  v.  Davies,  55  Conn. 
319. 

Ambiguities. —  Bradley  v.  Pees,  113  111.  327;  Morgan  v.  Burrows, 
45  Wis.  211;  Go/f  v.  Roberts,  72  Mo.  570;  Pfeifer  v.  Nat.  Ins.  Co.,  62 
Minn.  536. 

Parol  evidence  of  intention  is  inadmissible  to  explain  a  contract 
ambiguous  on  its  face.     Brown  v.  Slater,  16  Conn.  196. 

A  latent  ambiguity,  that  is,  an  ambiguity  arising  from  extrinsic 
evidence,  may  be  removed  by  extrinsic  evidence.  Bristol  v.  Ontario 
Orphan  Asylum,  60  Conn.  477. 

Practical  construction. —  The  practical  construction  by  the  par- 
ties can  be  shown.  Dist.  of  Columbia  v.  Oallaher,  124  U.  S.  505; 
Eosmer  v.  McDonald,  80  Wis.  54;  Howard  v.  Fessenden,  14  Allen 
(Mass.),  124;  Stevenson  v.  Erskine,  99  Mass.  367;  Morris  v.  French, 
106  Mass.  326;  Lovejoy  v.  Lovett,  124  Mass.  270;  Carney  v.  Hennes- 
sey, 74  Conn.  107,  49  Atl.  910;  Hamilton  v.  Dennison,  56  Conn.  368; 
Bray  v.  Loonier,  61  Conn.  464. 

Technical  terms,  special  significations,  figures,  marks,  etc. —  Fowler 
v.  Mtna  Fire  Insurance  Co.,  7  Wend.  270 ;  Dow  v.  Whetten,  8  Wend. 
160;  Collender  v.  Dinsmore,  64  Barb.  457,  55  N.  Y.  200;  Sturm  v. 
Williams,  6  J.  &  S.  325 ;  Coit  v.  Commercial  Insurance  Co.,  7  Johns. 
385;  Bend  v.  Georgia  Insurance  Co.,  1  N.  Y.  Leg.  Obs.  12;  Sleght  v. 
Hartshorne,  2  Johns.  531,  reversing  1  Johns.  192;  Astor  v.  Union  In- 
surance Co.,  7  Cow.  202 ;  Dana  v.  Fiedler,  12  N.  Y.  40,  1  E.  D.  Smith, 
463;  Collender  v.  Dinsmore,  55  N.  Y.  200,  64  Barb.  457;  Dickinson  v. 
Water  Commissioners,  2  Hun,  615,  5  S.  C.  185;  Nelson  v.  Sun  Mutual 
Insurance  Co.,  71  N.  Y.  453;  Storey  v.  Salomon,  6  Daly,  531;  Silber- 
man  v.  Clark,  96  N".  Y.  522 ;  Kennedy  v.  Porter,  109  N.  Y.  526 ;  Camp- 
bell Printing  Press,  etc.,  Co.  v.  Walker,  1  N.  Y.  St.  R.  200,  114  N.  Y. 
7,  22  N.  Y.  St.  P.  173,  affirming  9  N.  Y.  St.  R.  722 ;  Neiohall  v.  Apple- 
ton,  114  N.  Y.  140,  22  N.  Y.  St.  R.  670;  Smith  v.  Clews,  114  N.  Y. 
140,  22  N.  Y.  St.  R.  670;  Atkinson  v.  Truesdell,  127  N.  Y.  230,  38 
N.  Y.  St.  R.  159,  affirming  25  N.  Y.  St.  R.  821,  6  N.  Y.  Supp.  509. 

Abbreviations. —  Abbreviations  may  be  explained  by  parol.  Con. 
Ben.  Assn.  v.  Loomis,  142  111.  560;  Razor  v.  Razor,  142  111.  375;  Con- 
verse v.  Wead,  142  111.  132. 

The  meaning  of  C  O  D  may  be  shown  by  parol.  Adams  Express 
Co.  v.  Lesem,  39  111.  313. 

The  term  "  southeast  40  "  may  be  defined  by  parol  evidence,  where 
it  is  used  in  a  deed.     Evans  v.  Gary,  174  111.  595,  51  N.  E.  615. 


452  A  DIGEST  OF  [Pabt  II. 

New    Jersey. 

Identity. —  Identity  may  be  proved  by  parol  when  there  13  a 
misnomer,     Youngs  v.  Sunderland,  3  Green,  32. 

Person  or  thing  muaiit  by  a  peculiar  name.  Looming  v.  Sisters, 
35  X.  J.  Eq.  392. 

Parol  evidence  admissible  to  identify  a  note  referred  to  in  a  writ- 
ing. Martin  v.  Bell,  3  Harr.  107.  Or  to  identify  a  legatee.  Leans 
v.  Lays,  3  X.  J.  Eq.  204.  Or  to  identify  the  subject-matter.  Fitch 
v.  Archibald,  29  X.  J.  L.    160. 

Parol  evidence  admitted  to  identify  the  demand  which  a  mort- 
gage was  given  to  secure.     Tallman  v.  ^Yallack,  5-4  X.  J.  Eq.  655. 

Meaning  of  terms. —  Business  usage  may  be  proved  to  give  certain 
terms  a  special  meaning.  Steward  v.  Scudder,  4  Zab.  96;  Scltenck 
v.  Qriffen,  38  X.  J.  L.  463. 

Oral  evidence  admissible  to  show  that  ordinary  words  are  used  in 
a  special  or  technical  sense.     Smith  v.  Lunger,  64  X.  J.  L.  539. 

Parol  evidence  admitted  to  explain  the  term  "Domestic  Missionary 
Society"  in  a  will.  Van  Nostrand  v.  Reformed  Church,  59  X.  J.  Eq. 
19.  And  to  identify  the  "Home  Missionary  Society.''  Congregational 
Home  Mis.  Soc.  v.  Van  Arsdale,  58  X.  J.  Eq.  293. 

Though  a  c  /ntract  describes  a  sum  of  money  as  liquidated  dam- 
ages or  as  a  penalty,  the  court  is  not  bound  by  such  description 
but  will  inquire  as  to  the  true  facts  of  the  case.  Whiteld  V.  Levy, 
35  X.  J.  L.  149;  Cheddick  v.  Marsh,  1  Zab.  403;  Church  v.  Stock- 
ton, S  X.  J.  Eq.  520. 

Doubtful  meaning. —  Parol  evidence  admissible  to  explain  doubt- 
ful meaning.  Hartwell  v.  Cammun,  10  X.  J.  Eq.  128:  Suffem  v. 
Butler,  21  N".  -I.  Eq.  410;  Wuesthoff  v.  Seymour,  22  X.  J.  Eq.  66; 
Leigh  v.  Savidge,  14  X.  J.  Eq.  124. 

Parol  evidence  admitted  to  show  that  time  was  of  the  essence, 
where  the  writjig  left  the  matter  doubtful.  King  v.  Ruckman,  20 
X.  J.  Eq.  316.   21   X.  J.  Eq.  599. 

Latent  ambiguity. —  Latent  ambiguity  defined.  Den.  v.  Cubberly, 
7   Hal.   308. 

Latent  ambiguity  explainable  by  parol.  Den.  v.  Cubberly,  7  Hal. 
308:  JaeJ.-.sm,  v.  Perrine,  35  X.  J.  L.  137;  Axford  v.  Meeks,  59 
X.   T.  L.  502. 

Patent  ambiguity. —  Parol  evidence  not  admissible  to  explain  a 
patent  ambiguity.  TTnlztrJ  v.  Meeker,  IS  X.  .1.  Eq.  136;  Carr  v. 
Land  Co.,  22  X.  J.  Eq.  85;  S.  C,  19  X.  J.  Eq.  424. 


CliAP.XlI.]  THE  LAW  OF  EVIDENCE.  453 

"  Circumstances  of  the  case." —  To  put  the  court  in  the  position 
of  the  testator  and  enable  it  to  understand  the  language  of  his  will, 
the  situation  and  circumstances  of  the  testator  may  be  shown  by 
parol.  Barnard  v.  Barlow,  50  X.  J.  Eq.  131 ;  reversed,  Barlow  v. 
Barnard,  51   X.  J.  Eq.   020. 

To  arrive  at  the  intention  of  the  parties,  the  circumstances  sur- 
rounding the  execution  of  a  contract  may  be  proved.  Crane  v.  Bon- 
nell,  2  X.  J.  Eq.  204;  Morris  Canal  Co.  v.  Matthieson,  3  X.  J.  Eq. 
385;  Homer  v.  Leeds,  25  X.  J.  L.  100;  Ravens  v.  Thompson,  20 
X.  J.  Eq.  383. 

The  object  for  which  a  written  instrument  was  made  may  be 
shown  by  parol;  for  example,  that  a  bond  and  mortgage  were  given 
as  mere  collateral  security  and  not  to  merge  the  prior  account. 
Van  VKet  v.  Jones,  20  X.  J.  L.  340. 

Parol  evidence  admissible  to  explain  how  an  instrument  was 
executed.     Willis  v.  Ferriald,  33  X.  J.  L.  207. 

Illustration   (e).—  Beatty  v.   Trustees,  39  X.  J.  Eq.  452. 

Paragraph  7. —  Griseom  v.  Evans,  40  X.  .T.  L.  402,  42  X.  J.  L.  579. 

Paragraph  9. —  Van  Houten  v.  Post,  33  X.  J.  Eq.  344. 

Partnership. —  Yoorhees  v.  Jones,  29  X.  J.  L.  270. 

Maryland. 

Surrounding  circumstances. —  The  surrounding  circumstances  may 
be  proved  to  throw  light  on  the  intention  of  the  parties.  Bank  v. 
Gerke,  68  Md.  449. 

A  written  acknowledgment  of  an  indebtedness  may  be  explained 
by  proof  of  the  nature  of  the  transaction  out  of  which  it  arose. 
Barger  v.  Collins,  7  H.  &  J.  213. 

Independent  and  collateral  facts  may  be  shown  by  parol  to  aid  in 
the  interpretation  of  a  writing.  Bladen  v.  'Wells,  30  Md.  577;  Stock- 
ham  v.  Stockham.  32  Md.   190. 

The  method  of  making  a  contract  may  be  proved  to  aid  in  it* 
interpretation.     Phoenix  Ins.  Co.  v.  Ryland,  09  Md.  437. 

Identifying  subject-matter. —  Parol  evidence  not  contradicting  or 
varying  a  writing,  but  explaining  obscurity  and  identifying  subject- 
matter  is  admissible.  Criss  v.  Withers,  26  Md.  553:  Fryer  v.  Pat- 
rick, 42  Md.  51 :  Warfield  v.  Boothe,  33  Md.  63. 

The  subject-matter  of  a  will  may  be  identified  by  parol.  Chase  v. 
Stockett,  72  Md.  235. 


454  A  DIGEST  OF  [Part  II. 

Parol  evidence  is  admissible  to  make  certain  the  parties  or  the 
subject-matter.  Rice  v.  Forsyth,  41  Md.  389;  Dorsey  v.  Eagle,  7 
G.   &  J.   321. 

Practical  construction  by  the  parties. —  Acts  of  one  party  showing 
his  understanding  of  a  contract  are  not  admissible  as  against  the 
other  party.     Stockham  v.  Stockham,  32  Md.   196. 

Explanation  of  terms. —  Where  three  "  cargoes "  of  phosphate 
were  sold,  it  may  be  shown  by  parol  that  a  certain  number  of  tons 
formed  the  average  cargo  in  that  trade.  Pinckney  v.  Dambman,  72 
Md.  173. 

A  word  may  be  shown  to  have  a  special  meaning  in  a  certain 
trade.     Susquehanna  Fer.  Co.  v.  White,  66  Md.  444. 

Latent  ambiguities. — -An  ambiguity  which  is  latent  may  be  ex- 
plained by  parol.  Stockham  v.  Stocfcham,  32  Md.  196 ;  Rice  v. 
Forsyth,  41  Md.  389;  Dorsey  v.  Eagle,  7  G.  &  J.  321;  Mitchell  v. 
Mitchell's  Lessee,  6  Md.  224. 

Latent  ambiguity  defined.     Marshall  v.  Haney,  4  Md.  498. 

The  intention  of  a  testator  cannot  be  shown  by  parol  except  to 
explain  a  latent  ambiguity.  Brome  v.  Pembroke,  66  Md.  193;  Zim- 
merman v.  Hafer,  81  Md.  347. 

Patent  ambiguities. —  A  patent  ambiguity  is  one  apparent  on  the 
face  of  the  instrument  and' generally  cannot  be  explained  by  parol. 
Marshall  v.  Haney,  4  Md.  498;  Newcomer  v.  Kline,  11  G.  &  J.  498; 
Clarke  v.  Lancaster,  36  Md.  196;   Castleman  v.  Du  Yal,  89  Md.  657. 

Actual  intention. —  The  actual  intention  cannot  be  shown  by  parol 
evidence.     Marshall  v.  Haney,  4  Md.  498,  59  Am.  Dec.  92. 

In  construing  a  municipal  resolution,  parol  evidence  of  the  in- 
tention  of  the  members  of  the  council  is  not  admissible.  Hagers- 
town  v.  Startzman,  93  Md.  606. 

A  contract  partly  written  and  partly  oral  is  for  the  jury.  Roberts 
v.  Bonaparte,  73  Md.  191. 

Pennsylvania. 

Actual  intention. —  Where  the  terms  of  the  writing  are  clear  and 
unambiguous,  the  intention  of  the  parties  must  be  drawn  from  the 
writing  alone.  Eeagy  v.  L'mberger,  10  S.  &  R.  339;  Patterson  v. 
Forry,  2  Pa.  450;  Hancock's  Appeal,  34  Pa.  155:  Kennedy  v.  Road 
Co.,  25  Pa.  221:  Druckenmiller  v.  Young,  27  Pa.  97;  Albert  v. 
Ziegler,  29  Pa.  50;  Fisher  v.  Deibert.  54  Pa.  460;  Kirk  v.  Hartman, 
63  Pa.  97:   Kelley  v.  Kelley,  25  Pa.  400. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  455 

Identity  of  persons  and  things. —  Parol  evidence  is  admissible  to 
identify  the  subject-matter  and  apply  the  writing  to  it.  Appeal  of 
Morris,  88  Pa.  368;  Brownfield  v.  Brownfield,  20  Pa.  55;  Peart  v. 
Brice,  152  Pa.  277;  Palmer  v.  Farrell,  129'  Pa.  162;  Jackson  v. 
Litch,  62  Pa.  451;  McDermott  v.  Hoffman,  70  Pa.  31;  Barnhari  v. 
iJidcZZe,  29  Pa.  92. 

The  locality  and  identity  of  the  subject-matter  may  be  shown  by 
parol  evidence.  Bertsch  v.  Lehigh  C.  &  N.  Co.,  4  Rawle,  130;  Nixon 
v.  McCallmont,  6  W.  &  S.  159;  Gould  v.  Lee,  55  Pa.  9!);  C7arfce  v. 
Adams,  83  Pa.  309. 

Parol  evidence  admitted  to  show  that  testator  in  saying  "  Foreign 
Missionary  Society  "  meant  the  one  connected  with  a  certain  church. 
Amberson's  Estate,  204  Pa.  397. 

References  made  to  extrinsic  matters  may  be  explained.  Monoe. 
Bridge  Co.  v.  American  Iron  Bridge  Mfg.  Co.,  83  Pa.  517. 

An  insurance  policy  covered  a  "  barn  including  sheds  and  addi- 
tions attached."  This  is  explainable  by  parol.  Cummins  v.  In- 
surance Co.,  197  Pa.  61. 

Surrounding  circumstances. —  Parol  testimony  of  the  surrounding 
circumstances  is  admissible  to  aid  in  the  interpretation.  Douthett 
V.  Gas  Co.,  202  Pa.  416;    Gilmores  Appeal,   154  Pa.  523. 

Conversations  and  circumstances  may  be  proved  to  explain  am- 
biguities. Miller  v.  Fichlhorn,  31  Pa.  252;  Foster  v.  McGraic,  64 
Pa.  464;  Caley  v.  Railway  Co.,  80  Pa.  363. 

The  purpose  for  which  a  writing  was  made  may  be  shown.  Ap- 
peal of  Sweetzer,  71  Pa.  364. 

Meaning  of  words,  etc. —  McDonough  v.  Jolly,  165  Pa.  542;  Cones- 
toga  Co.  v.  Finke,  144  Pa.  159. 

Parol  evidence  is  admissible  to  explain  the  term  "  due  diligence." 
Bartley  v.  Phillips,  165  Pa.  325. 

The  word  "colliery"  explained  by  parol.  Carey  v.  Bright,  58 
Pa.  70. 

Expert  testimony  admitted  as  to  the  meaning  of  technical  terms. 
Miller  v.  Railway  Co.,  179  Pa.  350. 

Abbreviations. —  The  abbreviations  in  a  bank-book  may  be  ex- 
plained.    Wingate  v.  Bank.   10  Pa.  104. 

More  proper  meaning  of  language. —  Appeal  of  Washington  <&  Lee 
Univ.,  Ill   Pa.   572. 

Paragraph  (6). —  Best  v.  Hammond,  55  Pa.  409. 


456  A  DIGEST  OF  [Part  II. 

Paragraph   (9). —  Bank  v.  Fordyce,  9  Pa.  275. 

Agency. —  One  may  show  by  parol  that  he  contracted  as  agent 
for  another.     Hubbert  v.  Borden,  0  Whart.  79. 

It  may  be  shown  by  parol  that  one  who  signed  a  lease  did  not 
actually  sign  as  landlord  although  the  lease  represents  him  to  be 
such.     Swint  v.  Oil  Co.,  184  Pa.  202. 

Ambiguity  in  general. —  Parol  evidence  admissible.  ~\York  v.  Grier, 
Add.  372;  Grier  v.  Huston,  8  S.  &  R.  402;  Eckel  v.  Jones,  8  Pa.  501; 
Caley  v.  Railroad  Co.,  80  Pa.  303;  Shoemaker  v.  Ballard,  15  Pa.  92. 

Where  a  contract  incorporates  a  bill  of  items  and  also  certain 
plans  and  specifications,  and  the  latter  are  in  part  contradictory 
to  the  former,  it  may  be  shown  by  parol  which  paper  was  intended 
to  control.     Kendig  v.  Roberts,  187  Pa.  339. 

Patent  ambiguities. —  Patent  ambiguity  is  not  explainable  by 
parol.  Wright  v.  Wright,  2  Watts.  89.  But  see  Selden  v.  Williams, 
9   Watts,   9. 

Latent  ambiguities. —  Place  v.  Proctor,  2  Penny.  204;  Mutual  Ins. 
Co.  v.  Sailer,  67  Pa.  108. 

A  latent  ambiguity  may  be  explained  by  parol.  Hetherington  v. 
Clark,  30  Pa.  393;  Mutual  Ins.  Co.  v.  Sailer,  67  Pa.  108;  Coleman  v. 
Eberly,  76  Pa.  197. 

For  the  jury. —  Where  an  agreement  is  partly  written  and  partly 
oral  the  construction  of  the  whole  is  for  the  jury.  Philadelphia  v. 
Stewart,  201  Pa.  526.     See  also  Shafer  v.  Senseman,  125  Pa.  310. 

Written  parts  prevail  over  printed.  Haws  v.  Insurance  Co.,  130 
Pa.   113. 


Article  92.* 

cases  to  which  articles  90  and  91  do  not  apply. 

Articles  90  and  91  apply  only  to  parties  to  documents,, 
and  their  representatives  in  interest,  and  only  to  cases  in 
which  some  civil  right  or  civil  liability  is  dependent  upon 
the  terms  of  a  document  in  question.  Any  person  other 
than  a  party  to  a  document  or  his  representative  in  interest 

*  See  Note  XXXIV. 


Chap.  XII.]  THE  LAW  OF  EVIDENCE.  457 

may,  notwithstanding  the  existence  of  any  document,  prove 
any  fact  which  he  is  otherwise  entitled  to  prove ;  and  any 
party  to  any  document  or  any  representative  in  interest  of 
any  such  party  may  prove  any  such  fact  for  any  purpose 
other  than  that  of  varying  or  altering  any  right  or  liability 
depending  upon  the  terms  of  the  document. 

Illustrations. 

(a)  The  question  is,  whether  A,  a  pauper,  is  settled  in  the  parish 
of  Cheadle.  A  deed  of  conveyance  to  which  A  was  a  party  is  pro- 
duced, purporting  to  convey  land  to  A  for  a  valuable  consideration. 
The  parish  appealing  against  the  order  was  allowed  to  call  A  as  a 
witness  to  prove  that  no  consideration  passed.48. 

(6)  The  question  is,  whether  A  obtained  money  from  B  under  false 
pretences.  The  money  was  obtained  as  a  premium  for  executing  a 
deed  of  partnership,  which  deed  stated  a  consideration  other  than  the 
one  which  constituted  the  false  pretence.  B  may  give  evidence  of  the 
false  pretence  although  he  executed  the  deed  mis-stating  the  consid- 
eration for  the  premium.49 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed.),  sec.  279;  17 
Am.  &  Eng.  Encyclopaedia  of  Law   (1st  ed.),  p.  453  et  seq. 

Strangers  to  instrument. —  Bruce  v.  Roper  Co.,  87  Va.  381 ;  Needles 
v.  Hanifan,  11  111.  App.  303;  Burns  v.  Thompson,  91  Ind.  146; 
Pfeifer  v.  Nat.  Ins.  Co.,  62  Minn.  536,  538;  First  Nat.  Bank  v. 
Dunn,  55  N.  J.  L.  404;  Libby  v.  Mt.  Monadnock,  etc.,  Co.,  47  N.  H. 
587,  32  Atl.  772;  Low  v.  Blodgett,  21  N.  H.  121;  Edgerly  v.  Emer- 
son, 23  N.  H.  555,  55  Am.  Dec.  207;  Furbush  v.  Goodwin,  25  N.  H. 
425;  Woodman  v.  Eastman,  10  N.  H.  359;  Wilson  v.  Sullivan,  58 
N.  H.  260:  Burnham  v.  Dorr,  72  Me.  200.  Contra,  McLellan  v. 
Cumberland  Bank,  24   Me.   566;   Fonda   v.   Barton,   63   Vt.    355,   22 

«  R.  v.  Cheadle,  1832,  3  B.  &  Ad.  833. 
«  R.  v.  Adamson,  1843,  2  Moody,  286. 


A  DIGEST  OF  [Part  II. 

All.  "i!»4:  Shearer  v.  Babson,  1  Allen  (Mass.),  486;  Carpenter  v. 
King,  9  Mete.   (Mass.),  511. 

A  stranger  to  a  written  instrument  is  not  estopped  by  it  from  ad- 
ducing parol  testimony  to  prove  a  fraudulent  operation  of  it  upon 
his  interests.     Reading  v.  Weston,  8  Conn.  121. 

The  defendant  offered  to  show  an  oral  agreement  between  him- 
self and  the  mortgagee,  at  the  time  the  mortgage  was  given,  that 
he,  the  defendant,  should  have  the  possession  of  the  mortgaged 
premises  until  the  mortgagee  should  demand  possession.  Held,  that 
whatever  force  such  agreement  might  have  as  between  the  imme- 
diate parties  to  it,  the  plaintiff,  a  stranger,  could  not  be  affected 
by  it.     Downing  v.  Sullivan,  64  Conn.  4. 

The  owner  of  a  house,  after  having  employed  a  broker  to  sell  it, 
sold  it  himself  to  S,  a  person  not  sent  by  the  broker.  The  broker, 
not  being  apprised  of  this,  afterwards  obtained  an  offer  from  B,  of 
the  same  price  for  the  property  at  which  it  had  already  been  sold. 
This  having  been  refused,  and  B  having  discovered  the  prior  sale, 
he  offered  S  $1,000  for  his  bargain,  which  was  accepted,  and  the 
conveyance  was  made  by  the  owner  directly  to  B.  In  a  suit  by 
the  broker  for  his  commission, —  Held,  that  the  owner  was  not 
precluded,  by  the  term  of  the  deed,  from  showing  by  parol  that  B 
really  purchased  of   S.     Hungerford  v.  Hicks,  39  Conn.   264. 

Collateral  proceeding. —  Chopin  v.  Dobson,  78  N.  Y.  74;  Maddock 
v.  Root,  72  Hun,  98;  affirmed  in  150  X.  Y.  561;  Boicen  v.  Bank  of 
Newport,  11  Hun,  226;  Engel  v.  Eastern  Breidng  Co.,  19  Misc.  Rep. 
632,  44  N.  Y.  Supp.  391;  Sheely  v.  Cannon,  17  Wkly.  Dig.  159; 
Adams  v.  Van  Brant,  11  N.  Y.  St.  R.  659;  Potter  v.  Weidman,  20 
Wkly.  Dig.  110;  Lamphire  v.  Slaughter,  61  How.  Pr.  36. 

New    Jersey. 

Strangers. —  Rule  applies  only  to  parties  and  their  privies.  Bank 
v.  Dunn,  55  X.  J.  L.  401, 

Instrument  only  collaterally  in  issue. —  "Where  the  paper  relates 
merely  to  some  collateral  fact  and  is  not  the  subject  of  the  action, 
parol  evidence  of  its  contents  is  admissible.  Gilbert  v.  Duncan,  29 
X.  J.  L.   13.3,  521;    West  v.  State,  2  Zab.  212. 

To  show  interest  in  a  witness  he  may  be  asked  on  cross-examina- 
tion as  to  the  contents  of  a  writing  under  which  his  interest  arises. 
Uou-rll  v.  Ashmore,  2  Zab.  261. 

Parol  evidence  of  interest  in  a  witness  is  admissible,  although 
written  ovulrTHo  p\i>t*.      Mayo  v.   Gray,  Pen.   P37. 


Chap.  XII.]  THE   LAW   OF   EVIDENCE.  459 

Maryland. 

Third  parties. —  Strangers  to  an  instrument  may  impeach  it  by 
parol.     Henderson  v.  Alayhew,  2  Gill,  393. 

Third  parties  may  introduce  oral  evidence  to  prove  the  truth, 
though  in  variance  with  or  in  contradiction  of  a  written  instrument. 
Groce  v.  Rent  eh,  20  Md.  367. 

One  not  a  party  to  a  written  contract  may  prove  a  parol  agree- 
ment between  himself  and  one  of  the  parties  to  such  written  con- 
tract in  variance  of  its  terms.     Font  v.  Sprigg,  50  Md.  551. 

Instrument  collateral  to  the  issue. —  The  rule  does  not  apply  where 
an  instrument  is  only  collateral  to  the  issue,  and  the  parol  evidence 
is  not  offered  to  impeach  a  title  conferred  by  it  or  to  alter  or  im- 
pair the  rights  existing  under  it.     Stewart  v.  State,  2  H.  &  J.   114. 

Pennsylvania. 

The  contents  of  a  release  not  involved  in  the  issue  may  be  proved 
by  parol.  Shoenberger  v.  Hackman,  37  Pa.  87;  Scott  v.  Baker,  37 
Pa.  330. 

A  collateral  fact  recited  in  a  contract  may  be  proved  by  parol. 
Gilmore  v.  Wilson,  53  Pa.  194. 


460  A   DIGEST  OF  [Fart  III. 


PART  III. 

PRODUCTION    AND    EFFECT    OF 

EVIDENCE. 

CHAPTER    XIII.* 

BURDEN  OF  PROOF. 

Article  93.  f 

HE    "WHO    AFFIRMS    MUST    PROVE. 

Whoever  desires  any  Court  to  give  judgment  as  to  any 
legal  right  or  liability  dependent  on  the  existence  or  non- 
existence of  facts  "which  he  asserts  or  denies  to  exist,  must 
prove  that  those  facts  do  or  do  not  exist.1 

AMERICAN  NOTE. 

(See  also  note  to  Article  95.) 
General. 

Authorities. —  5  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  23 
et  seq.;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  74;  Clark  v.  King- 
man, 56  111.  App.  360;  McCollister  v.  Yard,  90  la.  621,  57  N.  W.  447; 
Com.  v.  Louisville  <{•  N.  R.  Co.,  31  S.W.  (Ky.)  473;  Wildey  v.  Crane, 
69  Mich.   17,  36  X.  Vv.  734;   Mask  v.  Allen,  17   South.    (Miss.)    82: 

The  burden  of  proof  is  upon  the  party  holding  the 
affirmative  of  the  issue.    Johnson  v.  Plowman,  49  Barb.  472;  Swart- 

*  See  Xote  XXXV.  f  See  Xote  XXXVI. 

l  1  Ph.  Ev.  552;  Taylor,  s.  364  (from  Greenleaf)  ;  Best,  ss.  265-6; 
Starkie.  585-6. 


Chap.  XIIJL]  THE  LAW  OF  EVIDENCE.  461 

out  v.  Ranier,  143  N.  Y.  499,  62  N.  Y.  St.  R.  848,  affirming  67  Hun, 
241;  Colburn  v.  Marsh,  68  Hun,  269,  affirmed,  on  opinion  below,  in 
144  N.  Y.  657 ;  Grant  v.  Walsh,  145  N.  Y.  502,  65  N.  Y.  St.  R.  370, 
reversing  81  Hun,  449;  Bryant  v.  Gay,  88  Hun,  614,  68  N".  Y.  St.  R. 
687,  affirmed  in  153  N.  Y.  655;  New  York  Security  d  Trust  Co.  v. 
Saratoga  Gas  d  Electric  Light  Co.,  88  Hun,  569,  affirmed  in  157  N.  Y. 
689.  See  30  App.  Div.  89,  appeal  dismissed  in  156  N.  Y.  645; 
Caswell  v.  Hazard,  47  N.  Y.  St.  R.  356,  65  Hun,  620 ;  Dwyer  v.  Rorke, 

10  App.  Div.  236,  41  N.  Y.  Supp.  721;  Continental  National  Bank  v. 
Strauss,  137  N.  Y.  148,  50  N.  Y.  St.  R.  208,  affirming  43  N.  Y.  St.  R. 
68;  Hotopp  v.  Huber,  16  App.  Div.  327,  affirming  18  Misc.  Rep.  554, 
dismissal  of  appeal  denied  in  153  iST.  Y.  677;  Matter  of  Elmer,  88 
Hun,  290,  68  N.  Y.  St.  R.  417;  Matter  of  Ryalls,  74  Hun,  205,  56 
N.  Y.  St.  R.  291 ;  Matter  of  Ryalls,  80  Hun,  459,  62  N.  Y.  St.  R.  291 ; 
Patterson  Gas  Governor  Co.  v.  Glenby,  4  Misc.  Rep.  532,  54  N.  Y. 
St.  R.  119. 

Burden  on  affirmative. —  Clark  v.  Kingman,  56  111. App.  360;  Hin- 
man  v.  Pope,  1  Gilm.  131;  Martin  v.  Brewster,  49  111.  306;  Union 
Nat.  Bank  v.  Baldenwick,  45  111.  375;  Wait  v.  Kirby,  15  111.  200; 
Ross  v.  Utter,  15  111.  402;  Clark  v.  Kingman,  56  111.  App.  360; 
Hanke  v.  Cobeskey,  57  111.  App.  267;  Harley  v.  Harley,  67  111.  App. 
138;  Marshall  v.  Cunningham,  13  111.  20;  Barnes  v.  People,  IS  111. 
52;   Hudson  v.  Miller,  97  111.  App.  74    (trespass)  . 

It  is  generally  not  necessary  to  prove  a  negative.     Graves  v.  Bruen, 

11  111.  431;  Indiana  M.  M.  F.  Ins.  Co.  v.  People,  65  111.  App.  355. 
But  where  one  has  conveyed  his  property  to  his  wife,  the  burden 

of  disproving  fraud  rests  upon  him.  Dillman  v.  Nadelhoffcr,  162 
111.  625. 

Where  both  parties  have  equal  opportunity  to  prove  a  negative  it 
must  be  established  by  the  plaintiff.  G.  W.  R.  R.  Co.  v.  Bacon,  30 
111.  347. 

One  alleging  undue  influence  must  prove  it.  Roe  v.  Taylor,  45  111. 
485. 

The  defendant  may  disprove  what  the  plaintiff  must  prove.  Atkins 
v.  Byrnes,  71  111.  327;  Herrick  v.  Gary,  S3  111.  85. 

One  who  charges  a  failure  of  duty  must  prove  it.  C.  &  G.  W.  Ry. 
Co.  v.  Armstrong,  62  111.  App.  228. 

The  burden  is  upon  the  plaintiff  to  make  out  his  case.  Kenyon  v. 
Hampton,  70  111.  App.  80. 


462  A  DIGEST  OF  [Past  III. 

Intestacy  is  a  fact  to  be  proven.    Lyon  v.  Kain,  36  111.  363. 

The  plaintiff  must  show  want  of  probable  cause  in  malicious  prose- 
cution. Brown  v.  Smith,  83  111.  291;  Angelo  v.  Fale,  85  111.  106; 
Anderson  v.  Friend,  85  111.  135;  Comisky  v.  Breen,  7  Brad.  369; 
McFarland  v.  Washburn,  14  Brad.  369;  Israel  v.  Brooks,  23  111.  575; 
Mitchinson  v.  Cross,  58  111.  366;  Lawrence  v.  Hagerman,  56  111.  68; 
Lundmacher  v.  Block,  39  111.  App.  560. 

In  libel  the  plaintiff  must  prove  malice.  TF/iarfon  v.  Wright,  30 
111.  App.  343,  348. 

The  burden  of  proof  is  on  the  one  affirming  the  execution  of  the 
will.     Bigg  v.  Wilton,  13  111.  15. 

The  ones  who  seek  to  establish  a  will  must  prove  mental  capacity. 
Carpenter  v.  Calvert,  83  111.  62;  Trish  v.  Newell,  62  111.  196. 

Where  a  joint  liability  is  alleged,  the  burden  is  on  the  party  al- 
leging it  to  prove  it.     Merchant  v.  Manion,  97  111.  App.  43. 

Insanity  must  be  proved  by  one  alleging  it.  Guild  v.  Bull,  127 
111.  533;  Perry  v.  Pearson,  135  111.  218,  227;  Stevens  v.  Shannahan, 
160  111.  330. 

In  an  action  for  personal  injuries,  the  plaintiff  must  prove  the 
negligence  of  the  defendant.  Illinois  Cent.  B.  B.  Co.  v.  Hobbs,  58 
111.  App.  130;  T.  E.  d  I.  B.  B.  Co.  v.  Eaggmann,  58  111.  App.  21. 

One  seeking  to  recover  for  an  injury  must  prove  that  he  used  due 
care.     Werk  v.  Illinois  S.  Co.,  54  111.  App.  302. 

The  plaintiff  in  a  contract  action  must  prove  defendant's  promise. 
Holmes  v.  Stummel,  24  111.  370;  Wells  v.  Beynolds,  3  Scam.  191; 
Johnson  v.  Moulton,  1  Scam.  532;  Boberts  v.  Garen,  1  Scam.  396. 

In  a  suit  on  a  constable's  bond,  the  plaintiff  has  the  burden  of 
proof.     Toborg  v.  Toborg,  63  111.  App.  426. 

Where  the  defendant  pleads  contract,  the  burden  of  proof  as  to  it 
is  upon  him.     Osgood  v.  Groseclose,  159  111.  511. 

One  who  seeks  to  establish  a  claim  against  an  insolvent  estate  has 
the  burden  of  proof.     Crandall  v.  Lumber  Co.,  164  111.  474. 

Where  one  pleads  license  to  land  he  has  the  burden  of  establish- 
ing it.     Chandler  v.  Smith,  70  111.  App.  658. 

One  who  pleads  in  abatement  has  the  burden  of  proof.  Schanzen- 
bach  v.  Brough,  58  111.  App.  526. 

Fraud  is  to  be  proved  by  the  one  who  pleads  it.  Muhlke  v.  Heger- 
ness,  56  111.  App.  322 ;  Sawyer  v.  Nelson,  59  111.  App.  46 ;  Elgin,  etc.r 
Co.  v.  Elgin,  etc.,  Co.,  155  111.  127;  Hall  v.  Jarvis,  65  111.  302;  Boss 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  463 

v.  Sutherland,  81  111.  275;  Edcy  v.  Fath,  4  Brad.  275;  E.  St.  L.  P. 
&  P.  Co.  v.  Hightoicer,  9  Brad.  297. 

A  husband  who  conveys  his  property  to  his  wife  has  the  burden  of 
showing  that  it  was  not  fraudulent  as  to  creditors.  Dillman  v.  Na- 
delhoffer,  162  111.  625. 

If  fraud  is  set  up  as  a  defense  it  must  be  proved.  Lawrence  v. 
Jarvis,  32  111.  305;  Milk  v.  Moore,  39  111.  584;  Stout  v.  Oliver,  40 
111.  245. 

Decree  of  proof. —  In  order  to  obtain  a  judgment,  the  plaintiff  must 
prove  his  case  by  a  preponderance  of  evidence.  Dickenson  v.  Gray, 
72  111.  App.  55;  M'Kensie  v.  Stretch,  48  111.  App.  410;  Mitchell  v, 
Uindman,  150  111.  538;  Shinn  v.  Matlmey,  48  111.  App.  135;  Irwin 
v.  Brown,  145  111.  199;  C.,  P.  &  St.  L.  Ry.  Co.  v.  Lewis,  48  111.  App. 
274;  Smith  v.  Hays,  23  111.  App.  244;  P.  d  R.  I.  R.  R.  Co.  v.  Lane, 
83  111.  448;  Graves  v.  Coldwell,  90  111.  612;  Herrick  v.  Gary,  83 
111.  85. 

Unless  the  plaintiff  has  made  out  his  case  by  a  preponderance  of 
evidence  a  judgment  in  his  favor  must  be  reversed.  Kenyon  v.  Hamp- 
ton, 70  111.  App.  80. 

The  truth  of  the  charge  may  be  established  in  libel  suits  by  a 
preponderance  of  evidence.  Hurd's  Rev.  Stat.,  chap.  126,  sec.  3, 
p.  1604. 

A  tort  may  be  shown  by  a  preponderance  of  evidence.  Hoener  v. 
Koch,  84  111.  408. 

Fraud  in  inducing  another  to  sign  a  note  may  be  proved  by  a  pre- 
ponderance of  evidence.     Kingman  v.  Reinemer,  166  111.  208. 

Preponderance  does  not  depend  necessarily  upon  the  number  of 
witnesses.     Gotcen  v.  Kehoe,  71  111.  66. 

The  word  "  preponderance "  is  defined  in  N.  C.  St.  Ry.  Co.  v. 
Louis,  138  111.  9. 

The  plaintiff  need  not  prove  his  case  by  a  clear  preponderance  of 
evidence.     Taylor  v.  Felsing,  164  111.  331. 

The  court  need  not  instruct  the  jury  in  a  civil  case  that  the  plain- 
tiff must  prove  his  case  by  a  clear  preponderance.  Gooch  v.  Tobias, 
29  111.  App.  268;  Cartier  v.  Troy  Lumber  Co.,  35  111.  App.  449,  456. 
It  is  error  to  so  charge.     Harnish  v.  Hicks,  71  111.  App.  551. 

It  is  erroneous  to  charge  the  jury  that  the  plaintiff  must  prove 
his  own  case  by  a  preponderance  of  evidence,  and  must  also  disprove 
the  issues  presented  by  the  defendant.  Schallman  v.  Royal  Ins.  Co., 
94  111.  App.  364. 


464  A  DIGEST  OF  [Pabt  III. 

As  to  degree  of  proof  required  in  specific  performance,  see  Short 
v.  Keiffer,  142  111.  258. 

Whether  there   is   a  preponderance  of   evidence  is   for   the  jury. 
Weber  Wag.  Co.  v.  Kehl,  40  111.  App.  584,  587. 

An  instruction  that  a  jury  is  to  be  satisfied  is  error.  Rolfe  v. 
Rich,  149  111.  436. 

In  a  civil  case,  fraud  may  be  proved  by  a  preponderance  of  evi- 
dence. Sherwood  v.  National  Bank,  17  111.  App.  591,  593;  C,  N.  & 
St.  P.  Ry.  Co.  v.  Kruger,  124  111.  457;  Endsley  v.  Johns,  120  111.  469, 
475;  Broun  v.  Bierman,  24  111.  App.  574;  Orient  Ins.  Co.  v.  Weaver, 
22  111.  App.  122. 

Fraud  must  be  proved  clearly.  Coan  v.  Morrison,  34  111.  App.  352, 
354;  Geneser  v.  Telgman,  37  111.  App.  374,  382;  Johnson  v.  Worth- 
ington,  30  111.  App.  617,  625;  Altmann  v.  Weir,  34  111.  App.  617. 

The  one  alleging  usury  must  prove  it.  Telford  v.  Garrels,  132  111. 
550,  554. 

The  burden  is  upon  the  defendant  in  specific  performance  to  show 
the  subsequent  change  of  contract.  Gray  v.  S.  Car  Mfg.  Co.,  127  111. 
187,  199. 

A  gift  causa  mortis  must  be  proved  by  clear  evidence.  Woodburn 
v.  Woodburn,  23  111.  App.  289. 

The  plaintiff  in  a  civil  action  need  not  make  out  his  case  to  the 
satisfaction  of  the  jury.    Fernandes  v.  M'Ginnis,  25  111.  App.  165. 

It  is  error  to  charge  a  jury  that  one  must  prove  facts  in  a  civil 
case  to  the  satisfaction  of  the  jury.  White  v.  Gale,  14  Brad.  274; 
Balohradsky  v.  Carlisle,  14  Brad.  289;  Brent  v.  Brent,  14  Brad.  256. 

Proving  a  negative. —  The  burden  of  proof  is  sometimes  upon  the 
one  holding  the  negative.  Boulden  v.  Mdntire,  119  Ind.  574;  Good- 
loin  v.  Smith,  72  Ind.  173;  Carmel  Natural  Gas  Co.  v.  Small,  150 
Ind.  427;  O'Kane  v.  Miller,  3  Ind.  App.  136;  Archibald  v.  Long,  144 
Ind.  451;  Castle  v.  Bell,  145  Ind.  8;  City  of  New  Albany  v.  Endres, 
143  Ind.  192;  Nash  v.  Hall,  4  Ind.  444;  Hall  v.  Nash,  11  Ind.  34. 

When  a  right  depends  upon  establishing  a  negative  fact,  the  party 
asserting  it  must  prove  it.  O'Kane  v.  Miller,  3  Ind.  App.  136,  137; 
New  Albany  v.  Andres,  143  Ind.  192;  Carmel  Natural  Gas  Co.  v. 
Small,  150  Ind.  427;  Nash  v.  Hall,  4  Ind.  444;  Hall  v.  Nash,  11  Ind. 
34;  Boulden  v.  Mdntire,  119  Ind.  574,  581. 

Right  to  open  and  close. —  The  one  who  has  the  burden  of  proof 
has  the  right  to  open  and  close.  Ronyer  v.  Miller,  16  Ind.  App.  519; 
Starnes  v.  Schofield,  5  Ind.  App.  4. 


Chap.  XIII.]  THE  LAW  OF  EVIDENCE.  465 

On  plaintiff. —  The  plaintiff  generally  has  the  burden  of  proof. 
Turner  v.  Cool,  23  Ind.  56;  Zook  v.  Simonson,  72  Ind.  83;  Toledo, 
etc.,  R.  R.  Co.  v.  Stithorn,  16  Ind.  225;  Moore  v.  Allen,  5  Ind.  521; 
Hand  v.  Taylor,  4  Ind.  409;  Levi  v.  Allen,  15  Ind.  App.  38;  Smith 
V.  Downing,  6  Ind.  374. 

If  the  plaintiff  must  produce  any  proof  he  has  the  right  to  open  and 
dose.  Camp  v.  Brown,  48  Ind.  575;  Fetters  v.  Muncie,  34  Ind.  251; 
Hyatt  v.  Clements,  65  Ind.  12. 

The  right  to  open  and  close  is  not  taken  away  from  the  plaintiff 
by  filing  an  argumentative  denial.  Rothrock  v.  Perkinson,  61  Ind. 
39. 

If  the  plaintiff  fail  to  prove  some  essential  fact,  and  the  defend- 
ant supplies  the  omission,  it  is  sufficient.  Astley  v.  Carpon,  89  Ind. 
167,  175. 

On  defendant. —  The  defendant  sometimes  has  the  burden  of  proof. 
Blackledge  v.  Pine,  28  Ind.  466;  Cunningham  v.  Hoff,  118  Ind.  263; 
Hayes  v.   Fitch,   47   Ind.   21;    Zook  v.   Simonson,   72   Ind.   83. 

The  defendant  has  the  burden  of  proving  his  affirmative  defenses. 
Baker  v.  Leathers,  3  Ind.  558;  Peck  v.  Hunter,  7  Ind.  295;  State  v. 
Vincennes  Univ.,  5  Ind.  77;  Farbach  v.  State,  24  Ind.  77;  Balke 
v.  State,  24  Ind.  85;  Tull  v.  David,  17  Ind.  377;  Gaul  v.  Flemming, 
10  Ind.  253;  Smelscr  v.  Wayne,  etc.,  Co.,  82  Ind.  417,  420.  By  a 
preponderance  of  the  evidence.  Phenix  Ins.  Co.  v.  Picket,  119  Ind. 
155,  163;   McLees  v.  Felt,   11   Ind.   218. 

An  argumentative  denial  does  not  shift  the  burden  of  proof. 
Bishop  v.  State  ex  rel.,  83  Ind.  67,  74. 

Under  a  general  denial  all  the  evidence  need  not  be  negative  in 
character,  but  it  must  be  negative  in  its  effect.  Hess  v.  Union  State 
Bank,  156  Ind.  523. 

When  the  plaintiff  does  not  have  to  introduce  any  proof,  the  de- 
fendant has  the  burden  of  proof  as  to  his  affirmative  defenses  and 
may  open  and  close.  Lindley  v.  Sullivan,  133  Ind.  588;  Goodrich  v. 
Friedersdorff,  27  Ind.  308;  Indiana  Board  v.  Gray,  54  Ind.  91;  Judah 
v.  Trustees,  23  Ind.  272;  Shank  v.  Fleming,  9  Ind.  189;  Hamlin  v. 
Nesbit,  37  Ind.  284;  Zehner  v.  Kepler,  16  Ind.  290;  Donohoe  v.  Rich, 
2  Ind.  App.  540.     Compare  McCloskey  v.  Davis,  8  Ind.  App.  190. 

The  plaintiff  has  the  burden  of  proving  property  in  himself  in 
replevin  where  he  pleads  that  the  goods  are  his  property.  Noble  v. 
Epperly,  6  Ind.  414 ;  Turner  v.  Cool,  23  Ind.  56. 

30 


466  A  DIGEST  OF  [Fart  III. 

The  burden  of  proving  payment  is  upon  the  defendant.  Clifford 
v.  Smith,  4  Ind.  377. 

If  the  defendant  pleads  fraud  or  failure  of  consideration  he  has 
the  burden  of  proof.  Toicsey  v.  Shook,  3  Blackf.  267;  Rogers  v. 
Worth,  4  Blackf.  186;  Thomas  v.  Quick,  5  Blackf.  334;  Cook  v. 
Cunningble,  4  Ind.  221.  Compare  Flack  v.  Cunningham,  1  Blackf. 
107;  Fisher  v.  Fisher,  8  Ind.  App.  665.;  Tenbrook  v.  Brown,  17  Ind. 
410;  Stewart  V.  English,  6  Ind.  176. 

Or  lack  of  capacity  in  a  donor  or  testator.  Blough  v.  Parry,  144 
Ind.  463;  Teegarden  v.  Leicis,  145  Ind.  98. 

Or  infancy.     Pitcher  v.  haycock,  7  Ind.  398. 

The  burden  of  proof  is  on  the  defendant  in  a  cross-complaint. 
Fitzgerald  v.  Qoff,  99  Ind.  28,  35. 

On  a  counterclaim,  the  defendant  has  the  right  to  open  and  close. 
McCormick  v.  Cray,  100  Ind.  285;  Schee  v.  McQuilken,  59  Ind.  269. 

In  slander  and  libel,  the  defendant  who  justifies  has  the  right  to- 
open  and  close.    Heilman  v.  Shanklin,  60  Ind.  424. 

Statutes. —  Statutes  which  merely  declare  statutory  presumptions 
affecting  the  burden  of  proof  are  valid.  Voght  v.  State,  124  Ind.  358, 
362. 

As  to  burden  of  proof  under  section  2666,  Burns,  1901,  see  Archi- 
bald v.  Long,  144  Ind.  451. 

Statutes  changing  the  burden  of  proof  are  strictly  construed. 
White  v.  Flynn,  23  Ind.  46. 

New  Jersey. 

General  authorities. —  Trenton  Ins.  Co.  v.  Johnson,  4  Zab.  576 ; 
American  Ins.  Co.  V.  Anderson,  33  N.  J.  L.  151;  Kane  v.  Hibernia 
Ins.  Co.,  38  N.  J.  L.  441;  Winans  V.  Winans,  19  N.  J.  Eq.  220; 
Butts  v.  Hoboken,  38  N.  J.  L.  391;  Feldman  v.  Gamble,  26  N.  J.  Eq. 
494;  Eduxirds  v.  Elliott,  36  N.  J.  L.  449;  S.  C,  21  Wall.  532  > 
Fischer  v.  Fischer,  18  N.  J.  Eq.  300. 

Burden  of  proving  notice  of  an  unrecorded  deed  is  on  the  party 
alleging  notice.  Coleman  v.  Barklew,  27  N.  J.  L.  357;  Lewis  v.  Hallr 
7  N.  J.  Eq.  475;  Blair  v.  Ward,  10  N.  J.  Eq.  119;  Holmes  v.  Stout, 
10  X.  J.  Eq.  419;  Yreeland  v.  Claflin,  24  N.  J.  Eq.  313;  Buchanan 
v.  Rowland,  2  South.  732. 


Chap.  XIIL]  THE,  LAW   OF   EVIDENCE.  467 

Burden  of  proving  that  the  report  of  a  master  is  erroneous  is  on 
the  one  excepting.     Bank  v.  Sprague,  23  N.  J.  Eq.  81. 

Burden  of  proving  mental  incapacity  is  on  one  alleging  it. 
Sicayze  v.  Swayze,  37  N.  J.  Eq.  180. 

Burden  may  be  on  the  defendant. —  Burden  of  proving  payment  as 
a  defense  is  on  the  defendant.  McKinney  v.  Slack,  19  N.  J.  Eq. 
164;  Smith  V.  Burnet,  17  N.  J.  Eq.  40. 

In  trespass,  if  the  defendant  avers  property  in  him  the  burden  of 
proving  it  is  on  him.     Ouicalt  v.  Burling,  25  N.  J.  L.  443. 

In  suit  by  an  assignee  to  foreclose  a  mortgage,  the  burden  is  ore 
the  defendant  to  prove  that  plaintiff  was  not  a  bona  fide  purchaser- 
Banbury  v.  Robinson,  14  N.  J.  Eq.  213. 

Burden  of  proof  in  bastardy  cases. —  G.  S.  1895,  "  Bastards,"  19. 

Maryland. 

One  alleging  a  contract  sustains  the  burden  of  proving  it  by  a 
preponderance  of  the  evidence.     Ollendorff  v.  Kaune,  66  Md.  495.. 

Statutes. —  Certificate  of  a  judge  made  conclusive  evidence  of  the 
sufficiency  of  articles  of  incorporation.  P.  G.  L.  1888,  art.  23, 
sec.  43. 

Constable's  receipt  of  a  claim  for  collection  made  prima  facie  evi- 
dence against  him  in  a  suit  on  his  bond.  P.  G.  L.  18S8,  art.  20, 
sec.  20. 

Protest  of  a  bill  or  note  made  prima  facie  evidence.  P.  G.  L. 
1888,  art.  13,  sec.  6. 

Pennsylvania. 

Burden  of  proving  a  negative  may  be  on  the  plaintiff.  Hunt  v. 
Todd,  18  Pa.  316. 

One  who  alleges  a  breach  of  covenant  must  prove  it  affirmatively. 
Chambers  V,  Jaynes,  4  Pa.  39;  Hubbard  v.  Wheeler,  17  Pa.  425; 
Sartwell  v.  Wilcox,  20  Pa.  117.  Even  though  the  party  alleging  it 
be  the  defendant.     Evans  v.  Fegely,  67  Pa.  370. 

The  one  alleging  failure  of  consideration  of  a  note  must  prove  it. 
Schneider  v.  Bechtold,  3  Phila.  50. 


468  A    DIGEST    OF  [Part  III. 


Article  94.* 
presumption  of  innocence. 

If  the  commission  of  a  crime  is  directly  in  issue  in  any 
proceeding,  criminal  or  civil,  it  must  be  proved  beyond 
reasonable  doubt. 

The  burden  of  proving  that  any  person  has  been  guilty 
of  a  crime  or  wrongful  act  is  on  the  person  who  asserts  it, 
whether  the  commission  of  such  act  is  or  is  not  directly  in 
issue  in  the  action. 

Illustrations. 

(a)  A  sues  B  on  a  policy  of  fire  insurance.  B  pleads  that  A  burnt 
down  the  house  insured.  B  must  prove  his  plea  as  fully  as  if  A  were 
being  prosecuted  for  arson.2 

(6)  A  sues  B  for  damage  done  to  A's  ship  by  inflammable  matter 
loaded  thereon  by  B  without  notice  to  A's  captain.  A  must  prove  the 
absence  of  notice.3 

(c)  The  question  in  1819  is,  whether  A  is  settled  in  the  parish  of  a 
man  to  whom  she  was  married  in  1813.  It  is  proved  that  in  1812  she 
was  married  to  another  person,  who  enlisted  soon  afterwards,  went 
abroad  on  service,  and  had  not  been  heard  of  afterwards.  The  burden 
of  proving  that  the  first  husband  was  alive  at  the  time  of  the  second 
marriage  is  on  the  person  who  asserts  it.4 

AMERICAN  NOTE. 
General. 

Authorities. —  2  Wharton  on  Evidence,  sec.  1246 ;  2  Greenleaf  on 
"Evidence  (15th  ed.),  sees.  408,  note,  426,  notes;  Childs  v.  Merrill, 
«6  Vt.  302. 

The  presumption  of  innocence  casts  the  burden  of  proving  guilt 

*  See  Note  XXXVI. 
2  Thurtell  v.  Beaumont,  1823,  1  Bing.  339. 
8  lYilliams  v.  East  India  Co.,  1802,  3  Ea.  192,  198-9. 
-»  R.  v.  Ttoyning,  1819,  2  B.  &  Aid.  386. 


Chap.  XIII.]  THE   LAW   OF  EVIDENCE.  469 

upon  the  State,  but  it  does  no  more.  While  it  calls  for  evidence 
from  the  State,  it  is  not  itself  evidence  for  the  accused.  State  v. 
Smith,  65  Conn.  283. 

The  court,  where  no  requests  were  made  by  the  prisoner,  charged 
that  it  was  incumbent  upon  the  State  to  satisfy  the  jury  beyond 
a  reasonable  doubt  of  the  guilt  of  the  accused,  but  omitted  to  say 
that  the  accused  was  presumed  to  be  innocent  until  proven  guilty, 
and  omitted  also  to  define  "  reasonable  doubt."  Held,  that  the  de- 
fendant had  no  just  ground  for  complaint.  State  v.  Smith,  65 
Conn.  283. 

Where  a  husband  is  charged  with  cruelty  or  violence  towards  his 
wife,  there  is  a  legal  presumption  of  his  innocence,  arising  from 
their  relation,  and  the  mutual  affection  by  which  it  is  commonly 
accompanied.     State  v.    Green,   35   Conn.  205. 

Criminal  cases. —  Miles  v.  U.  S.,  103  U.  S.  304;  Nevling  v.  Com., 
98  Pa.  St.  322;  People  v.  Paulsell,  115  Cal.  6;  Morgan  v.  State,  48 
O.  St.  371;  Wade  v.  State,  71  Ind.  535;  Jameson  v.  People,  145  111. 
357;  Porterfield  v.  Com.,  91  Va.  801;  People  v.  Ezzo,  104  Mich.  341; 
Com.,  v.  Goodtoin,  14  Gray  (Mass.),  55;  Com.  v.  Kimball,  24  Pick. 
(Mass.)  366;  Com.  v.  Hardiman,  9  Gray  (Mass.),  136;  Com.  v.  Mc- 
Eie,  1  Gray  (Mass.),  61;  State  v.  Schweitzer,  57  Conn.  539;  Hoyt  v. 
Banbury,  69  Conn.  348. 

Civil  cases. —  The  rule  in  this  country  generally  is  that  where 
crime  is  imputed  in  a  civil  case  it  is  enough  to  prove  it  by  prepon- 
derance of  evidence.  2  Greenleaf  on  Evidence  (15th  ed.),  sees.  408, 
note,  426,  notes;  Baird  v.  Abbey,  73  Mich.  347;  Smith  v.  Burns,  106 
Mo.  694;  Atlanta  Journal  v.  May  son,  97  Ga.  640;  U.  S.  Express  Co. 
v.  Jenkins,  73  Wis.  471;  Turner  v.  Hardin,  80  la.  691;  Continental 
Ins.  Co.  v.  Jachnichen,  110  Ind.  59;  Lindley  v.  Lindley,  68  Vt.  421; 
Nelson  v.  Pierce,  18  R.  I.  539;  Mead  v.  Husted,  52  Conn.  56;  Roberge 
v.  Burnham,  124  Mass.  277.  Contra  (following  the  general  English 
rule),  Grimes  v.  Hilliary,  150  111.  141;  Williams  v.  Dickenson,  28 
Fla.  90. 

In  an  action  brought  on  the  statute  to  recover  treble  value  for 
property  feloniously  taken,  the  court  below  held,  that  it  was  not 
enough  for  the  plaintiff  to  produce  evidence  sufficient  for  a  recovery 
in  an  ordinary  civil  action,  but  that  he  was  bound  to  prove  the 
felonious  taking  "  beyond  a  reasonable  doubt,  in  the  same  manner 
as  in  a  criminal  prosecution."  Upon  motion  of  the  plaintiff,  a  new 
trial  was  granted.    Munson  v.  Atwood,  30  Conn.  103-107. 


470  A    DIGEST    OF  [Part  IH. 

Crime  not  in  issue. — Last  paragraph  of  text.  Colorado  Coal  Co. 
v.  U.  8.,  123  U.  S.  307;  Davis  v.  Davis,  123  Mass.  590. 

Presumption  of  innocence. —  Such  a  presumption  exists  in  all  cases. 
AT.  Y.  &  Brooklyn  Ferry  Co.  v.  Moore,  18  Abb.  N.  C.  106,  102  N.  Y. 
€67,  1  X.  Y.  St.  R.  374,  reversing  32  Hun,  29;  Green  v.  Crane,  68 
N.  Y.  Supp.  248,  57  App.  Div.  9. 

Preponderance  defined. —  Preponderance  of  evidence  is  the  produc- 
tion of  evidence  by  the  plaintiff  which  when  weighed  with  the  oppos- 
ing evidence  has  the  greater  convincing  force  and  produces  a  greater 
probability  in  plaintiff's  favor.  Hoffman  v.  Loud,  111  Mich.  156. 
See  also  Strand  v.  C.  &  11*.  M.  By.  Co.,  67  Mich.  380,  34  N.  W. 
712. 

New   Jersey. 

Authority. —  State  v.  Wilson,  Coxe,  439. 

Criminal  cases. —  In  criminal  cases  guilt  must  be  proved  beyond 
a  reasonable  doubt.     Gardner  v.  State,  55  X.  J.  L.  17. 

Reasonable  doubt  defined.     Donnelly  v.  State,  26  X.  J.  L.  614. 

In  prosecutions  for  seduction  the  good  repute  of  the  prosecutrix 
for  chastity  must  be  established  beyond  a  reasonable  doubt.  State 
V.  Brown,  64  N.  J.  L.  414;  Zabriskie  v.  State,  43  X.  J.  L.  646.    . 

Insanity  as  a  defense. —  The  State  does  not  have  the  burden  of 
proving  sanity  beyond  a  reasonable  doubt.  Graves  v.  State,  45 
N.  J.  L.  203. 

Burden  of  proving  insanity  is  on  the  accused.  The  jury  must  be 
satisfied  of  the  insanity  beyond  a  reasonable  doubt.  State  v. 
Spencer,  1  Zab.   197. 

In  civil  cases. —  The  commission  of  a  crime  may  be  proved  by  a 
preponderance  of  the  evidence.  Kane  v.  Hibernia  Ins.  Co.,  39 
X.  J.  L.  697;  Kentner  v.  Kline,  41  X.  J.  Eq.  422. 

Illustration  (a). —  Rule  contra.  Kane  v.  Hibernia  Ins.  Co.,  39 
X.  J.  L.  697. 

Civil  case  where  more  than  mere  preponderance  required.  Cake 
v.  Shu  11,  45  X.  J.  Eq.  208.  Reformation  of  a  written  instrument. 
Green  v.  Stone,  54  X.  J.  Eq.  387.  Maintaining  defense  of  usury. 
Taylor  v.  Morris,  22  X.  J.  Eq.  606.  Said  to  require  proof  beyond  a 
reasonable  doubt.     Hupsch  v.  Resch,  45  X.  J.  Eq.  657. 

Proof  of  title  by  adverse  possession  required  to  be  beyond  a 
reasonable  doubt.     Rowland  v.  Updyke,  2S  X.  J.  L.  101. 

Divorce  cases. —  Adultery  on  the  part  of  the  defendant  in  divorce 
must  be   proved   beyond   a   reasonable   doubt.       The   court   must   be 


Chap.  XIII.]  THE   LAW   OF   EVIDENCE.  471 

satisfied.  Berckmans  v.  Berckmans,  17  N.  J.  Eq.  453.  The  proof 
must  be  entitled  to  and  command  belief.  Clare  v.  Clare,  19  N.  J. 
Eq.  37. 

Maryland. 

Authorities. —  Corpus  delicti  must  be  proved  beyond  a  reasonable 
doubt.     Norwood  V.  iState,  45  Md.  68. 

Criminality  in  criminal  cases  must  be  established  to  a  moral  cer- 
tainty.    B.  d  0.  R.  Co.  v.  Shipley,  39  Md.  251. 

Civil  cases. —  Moral  delinquency  in  civil  cases  must  be  proved  by 
•evidence  admitting  of  practically  no  reasonable  doubt.  Corner  v. 
Pendleton,  8  Md.  337. 

Preponderance  of  the  evidence  is  sufficient  in  civil  cases.  McBee 
v.  Fulton,  47  Md.  403. 

Proof  required  for  reformation  of  a  written  instrument.  Insur- 
ance Co.  v.  Ryland,  69  Md.  437. 

Pennsylvania. 

Criminal  cases. —  Nevling  v.  Com.,  98  Pa.  322. 

Guilt  must  be  proved  beyond  a  reasonable  doubt.  Com.  v.  Wi/rme- 
more,  1  Brewst.  356;  Com.  v.  Tack,  1  Brewst.  511;  Com.  v.  H anion. 
8  Phila.  401;  Com.  v.  Irring,  1  Leg.  Chron.  69;  Com.  v.  Harman,  4 
Pa.  274;  Insurance  Co.  v.  Usaw,  112  Pa.  89;  Mclleen  v.  Com.,  114 
Pa.  300;   Com.  v.  Cook,  166  Pa.  193. 

The  corpus  delicti  need  not  be  proved  by  "  overwhelming  proof.*' 
merely  beyond  a  reasonable  doubt.     Zcll  v.  Com.,  94  Pa.  258. 

Defenses. —  Burden  of  proving  insanity  by  a  fair  preponderance 
of  the  evidence  is  on  the  accused.  Com.  v.  Wireback,  190  Pa.  13S: 
€om.  v.  Bezek,  168  Pa.  603;  Com.  v.  Heidler,  191  Pa.  375;  Ortwein 
v.  Com.,  76  Pa.  414;  Lynch  v.  Com.,  77  Pa.  205.  But  he  need  not 
prove  it  "beyond  a  reasonable  doubt."     Meyers  v.  Com..  83  Pa.  131. 

The  same  rule  applies  to  an  alibi.     Rudy  v.  Co7ti.,  128  Pa.  500. 

Setting  up  an  alibi  as  a  defense  does  not  change  the  burden  of 
proof.     Fife  v.  Com,,  29  Pa.  429:   Briccland  v.  Com..  74  Pa.  463. 

In  rape,  the  burden  is  on  the  defendant  to  show  that  the  girl  is 
not  of  good  repute.     Com,  v.  Allen,  135  Pa.  483. 

Where  defendant  gives  evidence  showing  self-defense,  if  he  raises 
a  reasonable  doubt  of  guilt  he  should  be  acquitted.  Tiffany  v.  Com.. 
121   Pa.   165. 

Proof  of  good  character  may  raise  a  reasonable  doubt  of  guilt. 
Becker  v.  Com,.  9  Atl.  510. 


472  A    DIGEST    OF  [Pabt  IIL 

The  doubt  must  be  serious  and  substantial  to  justify  acquittal. 
Com.  V.  Harman,  4  Pa.  274. 

Definition  of  "  reasonable  doubt."     Com.  v.  Mudgett,  174  Pa.  211. 

In  civil  cases. —  The  commission  of  crime  may  be  established  by 
a  mere  preponderance  of  the  evidence  in  civil  cases.  Fire  Ins.  Co.. 
v.  Usaw,  112  Pa.  80;  Braunschweiger  v.  Waits,  179  Pa.  47. 

Where  a  libelous  article  charges  a  crime,  the  presumption  of 
innocence  establishes  prima  facie  the  want  of  probable  cause  for 
publishing  the  charge.     Bryant  v.  Times,   192  Pa.  585. 

In  action  for  alienation  of  a  wife's  affections,  adultery  need  not 
be  established  beyond  a  reasonable  doubt.  Sieber  v.  Pettit,  200 
Pa.  58. 

Sometimes  more  than  a  mere  preponderance  of  the  evidence  is 
required  in  civil  cases;  as  in  actions  to  reform  a  written  instru- 
ment. National  Bank  v.  Hartman,  147  Pa.  558.  To  set  aside  a 
written  instrument  for  fraud.  Cummins  v.  Hurlbutt,  92  Pa.  1G5. 
To  attack  the  acknowledgment  of  a  deed.  Lewars  v.  Weaver,  121 
Pa.  268. 

To  overcome  presumption  of  payment  raised  by  lapse  of  twenty 
years,  the  proof  must  be  of  a  "  satisfactory  and  convincing  char- 
acter."    Gregory  v.  Com.,  121  Pa.  611. 

Illustration  (a). —  Rule  contra.  Somerset  Co.  Ins.  Co.  v.  Usaw,. 
112  Pa.  80. 

Article  95. 
on  "whom  the  general  burden  of  proof  lies. 
The  burden  of  proof  in  any  proceeding  lies  at  first  on  that 
party  against  whom  the  judgment  of  the  Court  would  be 
given  if  no  evidence  at  all  were  produced  on  either  side, 
regard  being  had  to  any  presumption  which  may  appear 
upon  the  pleadings.  As  the  proceeding  goes  on,  the  burden 
of  proof  may  be  shifted  from  the  party  on  whom  it  rested  at 
first  by  hi3  proving  facts  which  raise  a  presumption  in  his 
favour.6 

»  1  Ph.  Ev.  552 ;  Taylor,  ss.  365,  366 ;  Starkie,  586-7  &  748 ;  Best, 
p.  268 :  and  see  Abrath  v.  N.  E.  Ry.,  1883,  11  Q.  B.  D.  440,  especially  the 
judgment  of  Bowen,  L.J.,  455-462. 


Chap.  XIII.]  THE   LAW    OF  EVIDENCE.  473 

Where  there  are  conflicting  presumptions,  the  case  is  the 
same  as  if  there  were  conflicting  evidence.6 

Illustrations. 

(a)  It  appears  upon  the  pleadings  that  A  is  indorsee  of  a  bill  of  ex- 
change. The  presumption  is  that  the  indorsement  was  for  value,  and 
the  party  interested  in  denying  this  must  prove  it.7 

(6)  A,  a  married  woman,  is  accused  of  theft  and  pleads  not  guilty. 

The  burden  of  proof  is  on  the  prosecution.  She  is  shown  to  have 
been  in  possession  of  the  stolen  goods  soon  after  the  theft.  The  burden 
of  proof  is  shifted  to  A.  She  shows  that  she  stole  them  in  the  presence 
of  her  husband.  The  burden  of  proving  that  she  was  not  coerced  by 
him  is  shifted  to  the  prosecutor.8 

(c)  A  is  indicted  for  bigamy.  On  proof  by  the  prosecution  of  the 
first  marriage,  A  proves  that  at  the  time  he  was  a  minor.  This  throws 
on  the  prosecution  the  burden  of  proving  the  consent  of  A's  parents.^ 

(d)  A  deed  of  gift  is  shown  to  have  been  made  by  a  client  to  his 
solicitor.  The  burden  of  proving  that  the  transaction  was  in  good 
faith  is  on  the  solicitor.^ 

(e)  It  is  shown  that  a  hedge  stands  on  A's  land.  The  burden  of 
proving  that  the  ditch  adjacent  to  it  was  not  A's  also  is  on  the  person 
who  denies  that  the  ditch  belongs  to  A.n 

(f)  A  proves  that  he  received  the  rent  of  land.  The  presumption 
is,  that  he  is  owner  in  fee  simple,  and  the  burden  of  proof  is  on  the 
person  who  denies  it.*2 

(g)  A  finds  a  jewel  mounted  in  a  socket,  and  gives  it  to  B  to  look 
at.  B  keeps  it,  and  refuses  to  produce  it  on  notice,  but  returns  the 
socket.  The  burden  of  proving  that  it  is  not  as  valuable  a  stone  of  the 
kind  as  would  go  into  the  socket  is  on  B.*3 

6  See  Illustration  (i). 

7  Mills  v.  Barber,  1836,  1  M.  &  W.  425. 

8  1  Russ.  Cri.  146. 

$R.  v.  Butler,  1803,  1  R.  &  R.  61. 

10  1  Story,  Eq.  Juris.,  s.  310,  n.  1.  Quoting  Hunter  v.  Atkins,  1832, 
3M.  &K.  113. 

"  Guy  v.  West,  1808,  Selw.  N.  P.  1244. 

12  Doe  v.  Coulthred,  1837,  7  A.  &  E.  235. 

13  Armoury  v.  Delamirie,  1721,  1  S.  L.  C.  353. 


474  A    DIGEST    OF  [Pabt  III. 

(h)  A  sues  B  on  a  policy  of  insurance,  and  shows  that  the  vessel 
insured  went  to  sea,  and  that  after  a  reasonable  time  no  tidings  of  her 
have  been  received,  but  that  her  loss  had  been  rumoured.  The  burden 
of  proving  that  she  has  not  foundered  is  on  B.14 

(i)  Z  in  1864  married  A.  In  1868  he  was  convicted  of  bigamy  in 
having  in  1868  married  B  during  the  life  of  A.  In  1879  he  married  C. 
In  1880,  C  being  alive,  he  married  D,  and  was  prosecuted  for  bigamy  in 
marrying  D  in  the  lifetime  of  C.  The  prisoner  on  his  second  trial 
proved  the  first  conviction,  thereby  proving  that  A  was  living  in  1868. 
No  further  evidence  was  given.  A's  being  alive  in  1868  raises  a  pre- 
sumption that  she  was  living  in  1879.  Z's  marriage  to  C  in  1879  being 
presumably  innocent,  raises  a  presumption  that  A  was  then  dead.  The 
inference  ought  to  have  been  left  to  the  jury.13 

AMERICAN  NOTE. 

(See  also  note  to  Article  93.) 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  74,  and 
notes;  5  Am.  &  Eng.  Encyclopaedia  of  Law   (2d  ed.),  p.  21  et  seq. 

The  burden  of  proof  does  not  shift;  the  weight  of  evidence  does. 
Scott  v.  Wood,  81  Cal.  398;  Atkinson  v.  Goodrich  Trans.  Co.,  69  Wis. 
5;  Tiffany  v.  Com.,  121  Pa.  St.  165;  State  v.  Wingo,  66  Mo.  181; 
Lgnew  v.  U.  S.,  165  U.  S.  36;  Clark  v.  Hills,  67  Tex.  141;  Tarbox  v. 
Eastern  Steamboat  Co.,  50  Me.  339;  Central  Bridge  v.  Butler,  2  Gray 
(Mass.),  130;  Phillips  v.  Ford,  9  Pick.  (Mass.)  39;  Powers  v.  Rus- 
sell. 13  Pick.   (Mass.)   69;  Starratt  v.  Mullen,  148  Mass.  570. 

The  term  "  burden  of  proof  "  is  used  in  two  senses,  viz.,  to  indi- 
cate the  burden  of  going  forward  if  the  allegations  of  the  pleader 
be  met  by  a  traverse,  and  to  denote  the  duty  to  meet  and  rebut  some 
pieces  of  evidence  introduced  by  the  adverse  party  by  proof  to  over- 
bear it  in  the  mind  of  the  trier.  Taking  the  term  in  the  former 
sense,  the  burden  of  proof  never  shifts.  Baxter  v.  Camp,  71  Conn. 
252;  Miles's  Appeal,  68  Conn.  242-244.  See,  also,  Pease  v.  Cole,  53 
Conn.  71. 

In  malicious  prosecution  the  court  charged  that  malice  might  be 
inferred  from  want  of  probable  cause,  but  refused  to  charge  that 

14  Roster  v.  Reed,  1826,  6  B.  &  C.  19. 
16  R.  v.  Willshire,  1881,  6  Q.  B.  D.  366. 


Chap.  XIII.]  THE   LAW   OF  EVIDENCE.  475 

the  burden  of  proof  shifted  from  the  plaintiff  to  the  defendant. 
Held,  correct.    Thompson  v.  Beacon  Valley  Rubber  Co.,  56  Conn.  499. 

Burden  of  proof  does  not  shift. —  The  giving  of  prima  facie  evi- 
dence of  a  fact  does  not  shift  the  burden  of  proof;  it  is  still  upon 
the  party  holding  the  affirmative,  after  all  the  evidence  is  in.  Heine- 
mann  v.  Heard,  62  N.  Y.  448,  reversing  2  Hun,  324,  4  S.  C.  666 ;  Be- 
derich  v.  McAllister,  49  How.  Pr.  351;  People  v.  Cassata,  6  App.  Div. 
386,  39  N.  Y.  Supp.  641. 

Instances. —  The  agreement  as  a  necessary  element  in  a  common- 
law  marriage  may  be  proved  by  the  same  circumstances  in  a  criminal 
as  in  a  civil  suit.  Swartz  v.  State,  7  Circ.  Dec.  43,  13  Ohio  Circ.  Ct. 
63. 

Degree  of  proof. —  In  civil  cases  a  preponderance  of  evidence  is 
enough.     Cunningham  v.  Hoff,  118  Ind.  263. 

An  affirmative  defense  is  to  be  established  by  a  preponderance  of 
evidence.  Shufflebarger  v.  Ollemman,  25  Ind.  App.  521;  Laird  v. 
Bavidson,  124  Ind.  412,  414. 

A  preponderance  of  evidence  does  not  involve  a  preponderance  of 
the  number  of  witnesses.  McLccs  v.  Felt,  11  Ind.  218;  Rudolph  v. 
Lane,  57  Ind.  115;   Wray  v.  Tindall,  45  Ind.  517. 

Preponderance  enough. —  In  a  suit  for  libel  charging  crime,  justifi- 
cation is  established  by  preponderance  of  evidence  and  does  not  need 
to  be  proved  beyond  a  reasonable  doubt.  In  a  suit  for  slander,  the 
words  imputing  the  commission  of  a  felony,  a  preponderance  of  evi- 
dence is  all  that  is  necessary  to  establish  the  plaintiff's  case.  Oiven 
v.  Beicey,  107  Mich.  67;  Finley  v.  Widner,  112  Mich.  230. 

Evidence  that  is  not  a  preponderance,  but  which  is  clear  and 
satisfactory,  must  justify  the  reformation  of  a  written  contract  upon 
mistake  in  drafting.  Burns  v.  Coskey,  100  Mich.  94;  Berrmersch 
v.  Linn,  101  Mich.  64;  Gumbert  v.  Trensch,  103  Mich.  543. 

New   Jersey. 

Presumptions. —  Presumption  of  fact  and  presumption  of  law  de- 
fined. Gulick  v.  Loder,  13  N.  J.  L.  6S,  72;  Snediker  v.  Everingham. 
27  N.  J.  L.   150,  153. 

Instances  of  proof  sufficient  to  raise  a  presumption. —  Conclusive 
presumption  that  debt  is  paid  after  a  lapse  of  twenty  years.  Blue 
v.  Everett,  55  N.  J.  Eq.  329. 

Presumption  is  that  a  will  found  canceled  was  canceled  inten- 
tionally, and  this  is  not  overcome  by  proof  of  a  declaration  of  the 


476  A    DIGEST    OF  [Pabt  III. 

testator  that  his  will  was  all  right.  Smock  v.  Smock,  11  N.  J.  Eq. 
156;  Matter  of  White,  25  N.  J.  Eq.  501. 

When  husband  pays  for  land  and  has  it  conveyed  to  his  wife,  a. 
gift  is  presumed.      Whitley  v.  Ogle,  47  N.  J.  Eq.  67. 

Claimant  under  a  deed  presumed  to  have  taken  without  notice  of 
prior  unrecorded  deeds.     Roll  v.  Rea,  50  N.  J.  L.  265. 

Possession  of  a  negotiable  instrument  is  prima  facie  evidence  of 
ownership.     Halstcd  v.  Colvin,  51  N.  J.  Eq.  387,  52  N.  J.  Eq.  339. 

Possession  raises  presumption  of  ownership  and  throws  burden  of 
proof  on  one  asserting  ownership  in  others.  Harris  v.  Kirkpatrick, 
36  N.  J.  L.  526 ;  reversing  S.  C,  35  N.  J.  L.  392 ;  Hopkins  v.  Chand- 
ler, 2  Harr.  299. 

Circumstances  raising  the  presumption  that  a  deed  from  husband 
to  wife  has  been  delivered.     Vought  v.  Vought,  50  N.  J.  Eq.   177. 

Burden  of  proving  absence  of  fraud. —  Where  plaintiff  proves  that 
certain  securities  were  obtained  from  him  by  fraud  or  felony  the 
burden  is  cast  upon  the  defendant  to  show  that  he  was  a  bona  fide 
holder  for  value,  ^¥ard  Sav.  Bank  v.  First  Nat.  Bank,  48  N.  J.  L. 
513. 

Proof  that  a  creditor  was  such  at  the  time  of  a  conveyance  for 
an  inadequate  consideration  raises  a  conclusive  presumption  of 
fraud.  Gardner  v.  Kleinke,  46  N.  J.  Eq.  90;  Bouquet  v.  Heyman, 
50  N.  J.  Eq.  114;  Manning  v.  Riley,  52  N.  J.  Eq.  39. 

Possession  by  the  vendor  raises  a  presumption  of  fraud  and  shifts 
the  burden  of  proof  from  the  creditor  to  the  vendee.  Runyon  V. 
Groshon,  12  N.  J.  Eq.  86. 

When  it  is  shown  that  a  negotiable  note  was  given  without  con- 
sideration the  holder  must  prove  that  he  was  a  bona  fide  purchaser 
for  value.  Gilbert  v.  Duncan,  29  N.  J.  L.  521 ;  reversing  S.  C,  29 
N.  J.  L.  133;  Bank  v.  Savings  Institution,  33  N.  J.  L.  170. 

Degree  of  proof. —  Evidence  to  show  that  ordinary  words  have 
been  used  in  a  peculiar  or  technical  sense  should  be  clear,  accurate, 
and  convincing.     Smith  v.  Lunger,  64  N.  J.  L.  539. 

Proof  of  adultery  in  divorce  cases  must  be  clear  and  direct  and  be 
such  as  to  command  belief.     Clare  v.  Clare,  19  N.  J.  Eq.  37. 

Doctrine  of  res  ipsa  loquitur. —  Proof  that  electricity  did  escape 
from  the  rails  is  presumptive  proof  of  negligence.  Res  ipsa  loquitur. 
Trenton  R.   Co.  v.  Cooper,   60  N.  J.  L.  219. 

Circumstances  under  which  a  presumption  of  negligence  arises 
from  mere  proof  of  the  injury.  Res  ipsa  loquitur.  Excelsior  Elee. 
Co.  v.  Sweet,  59  N.  J.  L.  441 ;  reversing  S.  C,  57  N.  J.  L.  224. 


Chap.  XIII.]  THE   LAW   OF  EVIDENCE.  477 

Explosion;  reasonable  inference  of  negligence.  Bahr  v.  Lombard, 
Ayres  &  Co.,  53  N.  J.  L.  233. 

Fall  of  an  electric  street  lamp;  presumption  of  negligence.  Ex- 
celsior Elec.  Co.  v.  Sweet,  57  N.  J.  L.  224. 

Injury  from  falling  brick.     Sheridan  v.  Foley,  58  X.  J.  L.  230. 

Burden  of  proving  insanity. —  The  defendant  setting  up  insanity 
as  a  defense  must  establish  it  by  a  preponderance  of  the  evidence. 
The  State  has  not  the  burden  of  proving  sanity  beyond  a  reasonable 
doubt.     Graves  v.  Slate,  45  N.  J.  L.  203. 

An  existing  state  presumed  to  continue. —  A  partnership  having 
existed,  it  is  presumed  to  continue.  Princeton  Co.  v.  Gulick,  I 
Harr.  161.     See  Farmers'  Bank  v.  Green,  30  N.  J.  L.  316. 

It  is  presumed  that  one  who  enters  as  a  tenant  continues  a  ten- 
ant, and  clear  proof  is  required  to  overcome  the  presumption.  Cole 
v.  Potts,  10  N.  J.  Eq.  67. 

Possession  once  shown  is  presumed  to  continue.  Watson  v.  Kelty, 
1  Harr.  517. 

Lucid  interval. —  Insanity  at  one  time  having  been  proved,  the 
burden  of  proving  a  lucid  interval  is  on  the  one  claiming  by  virtue 
of  the  insane  person's  act.  Den.  v.  Moore,  2  South.  470;  Whitenack 
v.  Stryker,  2  N.  J.  Eq.  8;  Goble  v.  Grant,  3  N.  J.  Eq.  629;  Turner 
v.  Cheesman,  15  N.  J.  Eq.  243;  State  v.  Spencer,  1  Zab.  196. 

Maryland. 

Authorities. —  Presumption  that  an  indorsee  is  a  bona  fide  pur- 
chaser for  value.     McCorker  v.  Banks,  84  Md.  292. 

Proof  of  execution  of  a  will  plus  the  presumption  of  sanity  make 
out  a  prima  facie  case.     Higgins  v.  Carlton,  28  Md.  115. 

In  an  action  for  damages  the  burden  is  on  the  plaintiff  to  show 
that  the  defendant's  act  was  prima  facie  wrongful,  and  then  on  the 
defendant  to  show  justification  or  excuse.  Tucker  v.  State,  89  Md. 
471. 

The  presumption  is  that  an  existing  state  of  affairs  continues. 
Hammond's  Lessee  v.  Inloes,  4  Md.   138.  • 

If  an  act  may  be  either  rightful  or  wrongful  according  to  the 
circumstances,  the  presumption  is  that  it  was  rightful.  Brewer  v. 
Boircrsox,  92  Md.  567. 

Degree  of  proof. —  The  proof  of  the  contents  of  a  lost  will  must 
be  conclusive  and  satisfactory.     Rhodes  v.  Vinson,  9  Gill,  169. 


478  A    DIGEST    OF  [Past  III. 

To  show  a  gift  mortis  causa,  proof  of  delivery  must  be  clear  and 
decisive.     Whalen  v.  Milholland,  89  Md.   199. 

The  usual  rule  in  civil  cases  is  that  a  fact  need  be  proved  only 
by  a  preponderance  of  the  evidence.  Myers  v.  King,  42  Md.  65 ; 
B.  <£  0.  li.  Co.  v.  Shipley,  39  Md.  251. 

Where  the  fact  to  be  proved  involves  moral  delinquency  the  evi- 
dence should  be  so  strong  as  to  overcome  any  presumption  of  inno- 
cence.    Corner  v.  Pendleton,  8  Md.  337. 

Res  ipsa  loquitur. —  Proof  of  an  injury  caused  by  the  falling  of 
cross  ties  from  a  moving  train  raises  a  presumption  of  negligence. 
Howser  v.  Railroad  Co.,  80  Md.  146. 

The  falling  of  a  roof  of  a  building  under  construction  is  primw 
facie  proof  of  negligence.     Hearn  v.  Quillen,  94  Md.  39. 

Proof  of  the  breaking  of  an  axle  of  a  car  raises  a  presumption  of 
negligence  and  throws  the  burden  of  proof  on  the  defendant.  West- 
ern Md.  E.  Co.  v.  Shirk,  95  Md.  637. 

No  presumption  of  negligence  arises  from  the  mere  breaking  of 
machinery.     South  Baltimore  Car  Works  v.  Shaefer,  96  Md.  88. 

Pennsylvania. 

Presumptions. —  When  a  presumption  of  negligence  has  arisen,  it 
remains  until  overthrown  by  the  opposite  party.  Kane  v.  Phila- 
delphia,  196  Pa.   502. 

Laws  of  another  State  are  presumed  to  be  the  same  as  the  leaf 
fori.     Musser  v.  Stauffer,  178  Pa.  99. 

When  a  husband  buys  property  and  takes  title  in  his  own  name, 
the  legal  presumption  is  that  he  furnished  the  money.  Martin's 
Estate,  181  Pa.  378. 

No  presumption  that  one  who  died  under  twenty-one  left  no  issue. 
Clark  v.   Trinity  Church,  5  W.  &  S.  266. 

Payment. —  Presumption  that  a  bond  has  been  paid  arises  after 
a  lapse  of  twenty  years.  White  v.  White,  200  Pa.  5G5 ;  Devereux's- 
Estate,  184  Pa.  429. 

No  matter  how,  solemnly  a  debt  may  be  evidenced  the  presumption 
of  payment  arises  after  twenty  years.  Hummel  v.  Lilly,  188  Pa. 
463. 

Presumption  of  payment  arising  from  lapse  of  time  is  a  rule  of 
eviflenre.  and  applies  against  the  State.     Ash's  Estate.  202  Pa.  422. 

A   receipt   in   full   raises   a   presumption   of  payment   and   throws 


Chap.  XIII.]  THE  LAW   OF  EVIDENCE.  479 

the  burden  of  overcoming  it  on  the  one  alleging  that  a  sum  is  due. 
It/wads'  Estate,  189  Pa.  460;  MacDonald  v.  Piper,  193  Pa.  312. 

The  burden  of  proving  payment  is  on  the  party  alleging  it,  and 
does  not  shift  merely  because  he  produces  certain  receipts.  If  these 
are  alleged  to  be  forgeries,  the  presumption  of  innocence  does  not 
avail  to  put  upon  the  opposite  party  the  burden  of  proof.  Shrader 
v.  Glass  Co.,  179  Pa.  623. 

Illustration  (a). —  Indorsee  of  a  bill  or  note  is  presumed  to  be  a 
bona  fide  purchaser  for  value.  Gray  v.  Bank,  29  Pa.  365;  Lerch 
Hardware  Co.  v.  Bank,  109  Pa.  240. 

Where  evidence  has  been  given  indicating  that  a  conveyance  was 
fraudulent,  the  burden  is  thrown  on  the  grantee  to  show  that  he 
was  a  bona  fide  purchaser  for  value.  Rogers  v.  Hall,  4  Watts,  359 ; 
Clark  v.  Depew,  25  Pa.  509. 

Illustration  (d). —  Attorney  and  client.  Cuthbertson's  Appeal,  97 
Pa.  163. 

Proof  of  a  fiduciary  relation  may  throw  the  burden  of  proving 
absence  of  undue  influence  on  the  proponent  of  a  will.  Miller's 
Estate,  179  Pa.  645. 

Illustration  (g). —  McCown  v.  Quigley,  147  Pa.  307. 

Proof  required  to  make  a  prima  facie  case. —  Proof  of  the  execu- 
tion of  a  will  plus  the  presumption  of  sanity  make  out  a  prima 
facie  ease.     Grubbs  v.  McDonald,  91  Pa.  236. 

The  owner  of  goods  lost  by  a  carrier  makes  out  a  prima  facie 
case  by  merely  showing  the  fact  of  loss  of  the  goods.  Buck  v.  Rail- 
road Co.,  150  Pa.  170. 

Res  ipsa  loquitur. —  A  presumption  of  negligence  may  arise  from 
mere  proof  that  an  accident  occurred.  Shafer  v.  Lacock,  168  Pa. 
497  (house  set  on  fire)  ;  Madara  v.  Electric  Ry.  Co.,  192  Pa.  542 
(collision  of  cars)  ;   Campbell  v.  Traction  Co.,  201  Pa.  167. 

Leaving  a  live  wire  on  the  street  raises  presumption  of  negligence. 
Devlin  v.  Light  Co.,  192  Pa.  188. 

A  presumption  of  negligence  may  arise  from  the  mere  fact  of  the 
explosion  of  a  boiler.     Baran  v.  Reading  Iron  Co.,  202  Pa.  274. 

Instances  where  no  such  presumption  arose.  Mixter  v.  Imp. 
Coal  Co.,  152  Pa.  395;  Huey  v.  Gahlenbeck,  121  Pa.  238;  Earle  v. 
Arbogast.  ISO  Pa.  409  (explosion)  ;  Bamford  V.  Traction  Co.,  194 
Pa.  17    (fall  of  a  pole). 

Shifting  burden  of  proof. —  The  burden  of  proof  does  not  shift ; 
the  weight  of  evidence  does.     Tiffany  v.  Com.,  121  Pa.  165. 


480  A    DIGEST    OF  [Part  III. 

Burden  said  to  shift  when  one  makes  out  a  prima  facie  case. 
Aiken   v.  Miller,  7  Pitts.  L.  J.  140. 

Proof  that  a  criminal  process  was  made  use  of  to  collect  a  debt 
raises  a  presumption  of  want  of  probable  cause  and  malice  and 
shifts  the  burden  of  proof.     Wenger  v.  Phillips,  195  Pa.  214. 

If  an  assignment  is  under  seal  a  consideration  will  be  presumed, 
but  evidence  of  mala  fides  shifts  the  burden.  Hancock's  Appeal,  34 
Pa.  155. 

Degree  of  proof. —  To  establish  a  parol  trust  the  evidence  must  be 
clear  and  convincing.  Fowler  v.  Webster,  180  Pa.  610;  Braun  V. 
Church,  198  Pa.  447;   Van  Storch  v.  Van  Storch,  196  Pa.  545. 

Evidence  to  establish  a  resulting  trust  must  satify  the  mind  and 
conscience  of  the  court  sitting  as  a  chancellor.  Fidelity  Co.  v.  Moore, 
194  Pa.  617. 

"  Very  clear  proof "  required  before  equity  will  grant  relief  on 
the  ground  of  mistake.  Ridgway's  Account,  206  Pa.  5S7;  William- 
son v.  Carpenter,  205  Pa.  164;  Ahlborn  v.  Wolff,  118  Pa.  242;  Bank 
v.  Hartman,  147  Pa.  558. 

Degree  of  proof  required  to  alter  the  terms  of  a  written  contract. 
Ott  v.  Oyer's  Exr.,  106  Pa.  6;  Thomas  v.  Loose,  114  Pa.  35;  Jones 
v.  Backus,  114  Pa.  120;  North  v.  Williams,  120  Pa.  109;  Ferguson 
v.  Rafferty,  128  Pa.  337;  Claybaugh  v.  Goodchild,    135  Pa.  421. 

Testimony  to  alter  or  set  aside  a  written  contract  must  be  clear, 
precise,  and  indubitable.  Axle  Co.  v.  Leyda,  188  Pa.  322;  Earrold 
v.  McDonald,  194  Pa.  359;  Streator  v.  Paxton,  201  Pa.  135;  Stitch's 
Estate,  201  Pa.  305. 

Evidence  to  reform  a  written  contract  must  be  clear,  precise,  and 
indubitable.     Schotte  v.   Meredith,   197   Pa.  496. 

Evidence  to  alter  or  contradict  a  written  contract  must  be  equivn- 
lent  to  the  testimony  of  two  credible  witnesses.  Beckett  v.  Allison, 
188  Pa.  279. 

It  is  error  to  allow  slight  evidence  of  fraud  to  overturn  a  writing. 
The  evidence  must  be  clear,  precise,  and  indubitable.  De  Douglas 
v.  Traction  Co.,  198  Pa.  430. 

Evidence  that  a  lost  deed  existed  and  that  it  was  delivered,  must 
be  clear  and  satisfactory.     In  re  Nicholls,  190  Pa.  308. 

A  wife  must  prove  by  evidence  not  admitting  of  doubt  that  prop- 
erty seized  on  execution  while  in  the  apparent  possession  of  her 
husband  is  really  her  property.     Eavenson  v.  Pownall,  182  Pa.  587. 


€hap.  XIII.]  THE   LAW   OF  EVIDENCE.  481 

Article  96. 

burden  of  proof  as  to  particular  fact. 

The  burden  of  proof  as  to  any  particular  fact  lies  on  that 
person  who  wishes  the  Court  to  believe  in  its  existence, 
unless  it  is  provided  by  any  law  that  the  burden  of  proving 
the  fact  shall  lie  on  any  particular  person;16  but  the  burden 
may  in  the  course  of  a  case  be  shifted  from  one  side  to  the 
other,  and  in  considering  the  amount  of  evidence  necessary 
to  shift  the  burden  of  proof  the  Court  has  regard  to  the 
opportunities  of  knowledge  with  respect  to  the  fact  to  be 
proved  which  may  be  possessed  by  the  parties  respectively. 

Illustrations. 

(a)  A  prosecutes  B  for  theft,  and  wishes  the  Court  to  believe  that  B 
admitted  the  theft  to  C.     A  must  prove  the  admission. 

B  wishes  the  Court  to  believe  that,  at  the  time  in  question,  he  was 
elsewhere.    He  must  prove  it. 

(6)  A.  a  shipowner,  sues  B,  an  underwriter,  on  a  policy  of  insurance 
on  a  ship.  B  alleges  that  A  knew  of  and  concealed  from  B  material 
facts.  B  must  give  enough  evidence  to  throw  upon  A  the  burden  of 
disproving  his  knowledge;  but  slight  evidence  will  suffice  for  this 
purpose.!? 

(c)  In  an  action  for  malicious  prosecution  the  plaintiff  must  prove 
( 1 )  his  innocence ;  ( 2 )  want  of  reasonable  and  probable  cause  for  the 
prosecution;  (3)  malice  or  indirect  motive;  and  he  must  prove  all  that 
is  necessary  to  establish  each  proposition  sufficiently  to  throw  the  bur- 
den of  disproving  that  proposition  on  the  other  side.18 

16  For  instances  of  such  provisions,  see  Taylor,  s.  372,  n.  2. 

17  Elkin  v.  Janson,  1845,  13  M.  &  W.  655.  See,  especially,  the 
judgment  of  Aldersen,  B.,  663-6. 

18  Abrath  v.  North  Eastern  Railway,  1883,  11  Q.  B.  D.  440. 

31 


482  A    DIGEST   OF  [Part  III. 

(d)  In  actions  for  penalties  under  the  old  game  laws,  though  the 
plaintiff  had  to  aver  that  the  defendant  was  not  duly  qualified,  and  was 
obliged  to  give  general  evidence  that  he  was  not,  the  burden  of  proving 
any  definite  qualification  was  on  the  defendant.19 

AMERICAN  NOTE. 

(As  to  the  shifting  of  the  burden  of  proof,  see  note  to  Articles  93 

and  95.) 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  78,  79  et 
seq.;  5  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  21;  Phoenix  Ins. 
Co.  v.  Picket,  119  Ind.  155;  2Etna  Life  Ins.  Co.  v.  Ward,  140  U.  S. 
76;  State  v.  Hathaway,  115  Mo.  36;  Robinson  v.  Robinson,  51  111. 
App.  317;  State  v.  Ahem,  54  Minn.  195;  State  v.  Emery,  98  N.  C. 
668;  State  v.  Higgins,  13  R.  I.  330;  Mulcahy  v.  Fenwick,  161  Mass. 
164;  Barton  v.  Kirk,  157  Mass.  303;  Parker  v.  Floyd,  12  Cush. 
(Mass.)  230;  Lothrop  v.  Otis,  7  Al'len  (Mass.),  435. 

First  paragraph  of  text.  Stiles  v.  Haner,  21  Conn.  512;  Fox  v. 
Glastenbury,  29  Conn.  209 ;  Ryan  v.  Bristol,  63  Conn.  31,  37 ;  Thomp- 
son v.  Beacon  Falls  Rubber  Co.,  56  Conn.  499. 

In  an  action  to  recover  an  overpayment  upon  a  contract  of  sale, 
the  burden  of  proof  is  upon  the  plaintiff.  Doyle  v.  Unglish,  143  N.  Y. 
556,  62  N.  Y.  St.  R.  801,  affirming  50  N.  Y.  St.  R.  244. 

In  an  action  to  foreclose  a  mechanic's  lien,  the  burden  of  proof  is 
upon  the  plaintiff  to  show  a  substantial  performance  or  waiver. 
Cahill  v.  Heuser,  2  App.  Div.  292,  73  N.  Y.  St.  R.  450. 

Where  a  general  denial  is  interposed  by  the  answer  to  the  whole 
complaint,  the  plaintiff  is  bound  to  establish  every  material  fact 
therein  alleged.  Farmers'  Loan  &  Trust  Co.  v.  Siefke,  144  N.  Y.  354,. 
63  N.  Y.  St.  R.  662. 

The  burden  is  upon  those  who  allege  unsoundness  of  mind  in  at- 
tacking a  deed  to  prove  that  fact.  Baldwin  v.  Golde,  88  Hun,  115r 
68  N.  Y.  St.  R.  273. 

19  1  Ph.  Ev.  556,  and  cases  there  quoted :  but  now  see  42  &  43  Vict, 
c.  49,  s.  39.  The  illustration  is  founded  more  particularly  on  R.  v. 
Jarvis,  in  a  note  to  R.  v.  Stone,  1757,  1  Ea.  639.  where  Lord  Mans- 
field's language  appears  to  imply  what  is  stated  above. 


Chap.  XIII.]  THE   LAW   OF  EVIDENCE.  48o 

Where  exceptions  are  filed  to  the  reports  of  executors  and  adminis- 
trators they  have  the  burden  of  proof.  Taylor  v.  Burk,  91  Ind.  252, 
255. 

On  appeal  from  proceedings  to  establish  a  highway  or  drain  the 
remonstrant  has  the  burden  of  proof.  Peed  v.  Brenneman,  89  Ind. 
252,  254 ;  Conwell  v.  Tate,  107  Ind.  171,  172. 

The  burden  of  proving  insanity  is  on  the  party  who  alleges  it. 
Fay  v.  Burditt,  81  Ind.  433,  443;  Olvey  v.  Jackson,  106  Ind.  280,  290; 
Hull  v.  Louth,  109  Ind.  315,  323. 

New   Jersey. 

Mental  capacity. —  Presumption  is  that  testator  had  capacity 
to  make  a  will.  Mct'oon  v.  Allen,  45  N.  J.  Eq.  708;  Lee's  Case,  40 
N.  J.  Eq.  193;  Smith  v.  Smith,  48  N.  J.  Eq.  566;  Swayze  v.  Swayze, 
37  N.  J.  Eq.  180. 

Presumption  is  in  favor  of  testamentary  capacity.  Burden  on 
contestants  to  show  insanity  or  drunkenness.  Elkinton  v.  Brick,  44 
N.  J.  Eq.  154;  Dumont  v.  Dumont,  46  N.  J.  Eq.  223;  Sloan  v.  Mans- 
field, 3  N.  J.  Eq.  563;  Trumbull  v.  Gibbons,  2  Zab.  117;  Andress  v. 
Weller,  3  N.  J.  Eq.  604. 

Presumption  is  that  a  man  is  conscious  and  sane,  and  burden  is 
on  one  alleging  the  contrary.  State  v.  Hill,  65  N.  J.  L.  627 ;  Turner 
v.  Cheesman,  15  N.  J.  Eq.  243;  Matter  of  Collins,  IS  N.  J.  Eq.  253. 

Defense  of  insanity  regarded  with  jealousy  and  must  be  estab- 
lished by  a  preponderance  of  the  evidence.  Graves  v.  State,  45 
N.  J.  L.  347.     See  State  v.  Spencer,  1  Zab.  197. 

Presumption  is  against  total  incapacity  to  contract  because  of 
intoxication.     Burroughs  v.  Richman,  13  N".  J.  L.  233. 

Health. —  Presumption  is  that  every  citizen  enjoys  normal  con- 
dition of  mind  and  body.  Board  of  Health  v.  Lederer,  52  N.  J.  Eq. 
675. 

Undue  influence. —  Waddivgton  v.  Buzby,  43  N.  J.  Eq.  154; 
reversed,  45  N.  J.  Eq.  173. 

Contributory  negligence. —  New  Jersey  Exp.  Co.  v.  Nichols,  33 
N.  J.  L.  434. 

Contributory  negligence  must  be  averred  and  proved  by  defendant. 
Durant  v.  Palmer,  29  N.  J.  L.  544. 

Authority  —  Fraud. •—  Hagerman  v  Buchanan,  45  N.  J.  Eq.  292; 
Zinn  v.  Brinkerhoff,  48  N.  J.  Eq.  513. 


484  A    DIGEST    OF  [Pabt  III. 

When  a  presumption  of  fraud  arises.  Phillips  V.  Pullen,  45  N.  J. 
Eq.  830. 

Opportunities  of  knowledge. —  Greeley  v.  Passaic,  42  N.  J.  L.  87. 

Burden  on  the  defendant. —  Burden  of  proving  that  one  is  within 
an  exception  to  a  general  law  forbidding  the  selling  of  liquors  with- 
out a  license  is  on  the  defendant.  Plain  fie  Id  V.  ~\Yatson,  57  N.  J.  L. 
525. 

Usury  as  a  defense,  burden  on  defendant.  Berdan  v.  Trustees,  47 
N.  J.  Eq.  8,  48  N.  J.  Eq.  309. 

Burden  of  proving  a  libelous  publication  privileged  is  on  the  de- 
fendant. King  v.  Patterson,  49  X.  J.  L.  417;  Fahr  v.  Hayes,  50 
N.  J.  L.  275. 

Instances. —  The  reasonableness  of  an  ordinance  is  presumed. 
Trenton  H.  R.  Co.  v.  Trenton,  53  N.  J.  L.  132. 

Presumption  is  that  a  woman  is  unmarried.  Gaunt  v.  State,  50 
N.  J.  L.  490. 

One  alleging  a  deed  absolute  on  its  face  to  be  a  mortgage  must 
prove  it.     Winters  v.  Earl,  52  N.  J.  Eq.  52,  588. 

When  an  officer  acts  without  objection  it  will  be  presumed  that 
he  is  the  one  appointed.     State,  Kingsland  v.  Union,  37  N.  J.  L.  268. 

Good  repute  for  chastity  must  be  proved  affirmatively  by  the  State 
in  a  prosecution  for  seduction.  It  is  not  presumed.  Zabriskie  v. 
State,  43  N.  J.  L.  646. 

Maryland. 

Instances. —  There  is  no  presumption  that  a  dead  man  left  no 
heirs;  it  must  be  proved.  Sprigg  v.  Moale,  28  Md.  497;  Hammond's 
Lessee  v.  Inloes,  4  Md.   138;  Shriver  v.  State,  65  Md.  278. 

Mental  capacity  of  a  testator  is  presumed.  Brown  v.  Ward,  53 
Md.  376;  Taylor  v.  Creswell,  45  Md.  422;  Higgins  v.  Carlton,  28 
Md.  111. 

There  is  no  presumption  that  the  law  of  another  State  is  the 
same  as  the  law  of  this  when  the  common  law  has  been  changed  by 
Btatute.  Dickey  v.  Bank.  S9  Md.  280;  State  v.  Railroad  Co.,  45 
Md.  41. 

Burden  on  the  defendant. —  In  an  action  to  vacate  a  conveyance 
as  being  in  fraud  of  creditors,  if  the  defendant  alleges  that  the 
grantor  had  other  property  sufficient  to  pay  creditors,  he  must  sus- 
tain the  burden  of  proving  such  allegation.  Dawson  v.  Waltemeyer, 
511  Md.  328. 


Chap.  XIII.]  THE  LAW   OF  EVIDENCE.  485 

The  burden  of  proving  that  the  insured  committed  suicide  is  on 
the  defendant  company.     Royal  Arcanum  v.  Biasheurs,  89  Aid.  024. 

The  burden  is  on  an  insurance  company  to  show  that  representa- 
tions of  the  insured  were  false  and  material  to  the  risk.  Maryland 
Casualty  Co.  v.  Gehrmann,  90  Md.  034. 

In  an  action  for  false  arrest,  the  burden  of  proof  is  on  the  de- 
fendant to  show  reasonable  ground  to  suspect  that  the  plaintiff  was 
guilty.     Edger  v.  Burke,  90  Md.  715. 

Negligence. —  The  burden  is  on  the  party  alleging  it.  Railroad 
Co.  v.  Stebbing,  62  Md.  504;  Commissioners  of  Harford  v.  Wise,  75 
Md.  38;  Railroad  Co.  v.  State,  73  Md.  74;  Benedick  v.  Potts,  88 
Md.   52. 

In  some  cases,  mere  proof  of  the  occurrence  of  an  accident  raises 
the  presumption  of  negligence.  Res  ipsa  loquitur.  Howser  v.  Rail- 
road Co.,  80  Md.  146;  Benedick  v.  Potts,  88  Md.  52;  Railroad  Co. 
V.  Kaskell,  78  Md.  517;  Drug  Co.  v.  Colladay,  88  Md.  78. 

Contributory  negligence. —  In  a  damage  suit,  the  burden  of  prov- 
ing contributory  negligence  is  on  the  defendant.  State  v.  Railroad 
Co.,  58  Md.  482;  Freeh  v.  Railroad  Co.,  39  Md.  574. 

Pennsylvania. 

Particular  facts. — Burden  is  on  the  one  asserting:  That  a  deed  is 
antedated.  Geiss  v.  Odenheimer,  4  Yeates,  278.  That  one  having 
legal  title  holds  in  trust.  Moore  v.  Small,  19  Pa.  461 ;  Todd  v. 
Campbell,  32  Pa.  250.  That  there  is  a  trust  and  that  the  bar  of 
the  statute  has  been  removed,  as  against  an  absolute  deed  thirty 
years  old.  Lingenfelter  v.  Rickey,  62  Pa.  123.  That  a  boundary  is 
other  than  the  monuments  show.  Daioson  v.  Mills,  32  Pa.  302. 
That  a  garnishee  holds  assets.  Caldicell  v.  Coates,  78  Pa.  312.  That 
a  condition  precedent  to  liability  on  an  instrument  has  occurred. 
Patterson  v.  Bank,  4  W.  &  S.  42.  That  a  contracting  party  was  in- 
competent.    McClure  v.  Mansell,  4  Brewst.  119. 

Burden  of  proving  marriage  is  upon  woman  claiming  to  be  widow 
of  decedent.     Davis'  Estate,  204  Pa.  602. 

Burden  is  on  the  insurance  company  to  show  that  insured  com- 
mitted suicide.     Fisher  v.  Life  Assn.,  188  Pa.  1. 

In  action  on  a  lost  note  given  for  a  loan,  the  burden  of  proving 
the  loan,  the  note,  and  its  loss  is  on  the  plaintiff.  Bollinger  v. 
Cowan,  193  Pa.  319. 


486  A    DIGEST    OF  [Pabt  III. 

Illustration  (c).—  McClafferty  v.  Philp,  151  Pa.  86. 

Mental  capacity. —  Testamentary  capacity  and  absence  of  undue 
influence  are  presumed.  Messner  v.  Elliott,  184  Pa.  41;  Grubbs  v. 
McDonald,  91  Pa.  236;  McClure  v.  Mansell,  4  Brewst.  119. 

Negligence. —  Sopherstein  v.  Bertels,  178  Pa.  401 ;  Madura  V.  Elec- 
tric By.  Co.,  192  Pa.  542;  Earle  v.  Arbogast,  180  Pa.  409. 

Evidence  that  a  passenger  was  injured  through  a  defect  in  the 
track  raises  a  presumption  of  negligence.  McCafferiy  v.  Railroad 
Co.,   193  Pa.  339. 

No  presumption  of  negligence  arises  from  the  mere  fact  that  one 
is  found  by  a  railroad  track  in  a  dying  condition.  Welsh  v.  Rail- 
road Co.,  181  Pa.  461. 

Burden  of  proving  negligence  where  an  infant  was  injured  is  on 
the  plaintiff;  where  it  is  not  sustained  there  should  be  an  instruc- 
tion for  the  defendant.  Kline  v.  Traction  Co.,  1S1  Pa.  276;  Moss 
v.  Traction  Co.,  180  Pa.  389. 

A  presumption  of  negligence  is  warranted  by  proof  that  squabs 
were  in  good  condition  when  put  in  a  cold  storage  warehouse  and 
were  mouldy  and  rotten  when  removed  therefrom.  Lcidy  v.  Ware- 
house Co.,  180  Pa.  323. 

Contributory  negligence. — It  is  presumed  that  the  deceased  "  stopped, 
looked,  and  listened."     Connerton  v.  Canal  Co.,  169  Pa.  339. 

Burden  on  the  defendant. —  Burden  of  proving  a  set-off  for  breach 
of  warranty  is  on  defendant.  Ore  Roaster  Co.  v.  Rogers,  191  Pa. 
229. 

In  action  to  recover  the  purchase  price  of  a  mill,  the  burden  of 
proving  that  the  mill  was  not  as  guaranteed  is  on  the  defendant. 
Sprout,  Waldron  &  Co.  v.  Eagal,  193  Pa.  389. 

Burden  of  proving  payment  of  a  debt  is  on  one  alleging  it.  Burk's 
Estate,  205  Pa.  332 ;  Building  Assn.  v.  Wall,  7  Phila.  240. 

Burden  of  proving  insanity  as  a  defense  is  on  the  accused  and  is 
never  shifted.  It  must  be  established  by  a  fair  preponderance  of 
the  evidence.  Com.  v.  Ileidler,  191  Pa.  375;  Com.  v.  Bezek,  168  Pa. 
603;  Com.  v.  Gerade,  145  Pa.  289;  Com.  v.  Woodley,  106  Pa.  463; 
Ortwein  v.  Com..  76  Pa.  414;   Com.  v.  Kilpatrick,  204  Pa.  218. 

In  an  action  for  selling  goods  without  a  license,  the  burden  is  on 
the  defendant  to  show  that  he  had  one.  Com.  v.  Brownbridge,  1 
Brewst.  399;  8.  C,  6  Phila.  318:  Com.  v.  Dilbo,  29  Leg.  Int.  150. 


Chap.  XIII.]  THE   LAW   OF   EVIDENCE.  487 


Akticle  97. 

burden  of  proving  fact  to  be  proved  to  make 

evidence  admissible. 

The  burden  of  proving  any  fact  necessary  to  be  proved  in 
order  to  enable  any  person  to  give  evidence  of  any  other 
fact  is  on  the  person  who  wishes  to  give  such  evidence. 

Illustrations. 

(a)  A  wishes  to  prove  a  dying  declaration  by  B. 

A  must  prove  B's  death,  and  the  fact  that  he  had  given  up  all  hope 
of  life  when  he  made  the  statement. 

( b )  A  wishes  to  prove,  by  secondary  evidence,  the  contents  of  a  lost 
document. 

A  must  prove  that  the  document  has  been  lost. 

AMERICAN  NOTE. 
General. 

Authorities. —  Grimes  v.  miliary,  150  111.  141;  Hansen  v.  Amer. 
Ins.  Co.,  57  la.  741;  State  v.  Thibeau,  30  Vt.  100;  State  v.  Swift,  57 
Conn.  505,  506;  Com.  v.  Brown,  14  Gray  (Mass.),  419;  Com.  v. 
Waterman,  122  Mass.  43;  Same  v.  Ratcliffe,  130  Mass.  36. 

Evidence  already  in  may  be  rendered  competent  by  subsequent  evi- 
dence.   Burns  v.  Harris,  66  Ind.  536;  Roivell  v.  Klein,  44  Ind.  290. 

Evidence  may  be  admitted  conditionally  upon  an  agreement  to 
bring  forth  other  evidence.     Railway  Co.  v.  Conway,  57  Ind.  52. 

New    Jersey. 

Burden  of  proving  that  an  instrument  is  lost. —  Johnson  v.  Am- 
wine,  42  N.  J.  L.  451. 

Lost  contract  —  burden  on  one  claiming  under  it.  Swaine  v. 
Maryott,  28  N.  J.  Eq.  589. 

Burden  of  proving  that  an  instrument  is  lost  is  on  the  one  offer- 
ing secondary   evidence.      Wyckoff  v.    Wyckoff,    16   N.   J.    Eq.    401 
Clark  v.  Hombeck,  17  N.  J.  Eq.  430;  Wills  v.  McDole,  2  South.  502 
Sterling  v.  Potts,  2  South.  773:   Smith  v.  Axtell,  1  N.  J.  Eq.  494 
Svssex  Ins.  Co.  v.  Woodruff,  26  N.  J.  L.  541. 

A  subsequent  admission  that  an  instrument  is  lost  is  as  good  as 
preliminary  proof.     Culver  v.   Culver,  31  N.  J.  Eq.  448. 


488  A   DIGEST   OF  [Part  III. 

Confessions. —  Before  the  State  may  introduce  a  confession,  it 
must  prove  affirmatively  that  the  confession  was  voluntary.  State 
v.  Young,  67  N.  J.  L.  223;  Roesel  v.  State,  62  N.  J.  L.  216. 

Maryland. 

Whether  the  loss  of  a  document  is  established  sufficiently  to  let 
in  secondary  evidence  is  a  question  for  the  court.  Banking  Co.  v. 
Oittings,  45  Md.   181. 

Pennsylvania. 

Whether  the  loss  of  a  document  has  been  proved  so  as  to  let  in 
secondary  evidence  is  a  question  for  the  court.  Flinn  v.  McGonigle, 
9  W.  &  S.  75;  Graff  v.  Railroad  Co.,  31  Pa.  489;  Gorgas  v.  Hertz, 
150  Pa.  538. 

Burden  of  proving  that  an  instrument  is  lost.  Emig  v.  Diehl,  76 
Pa.  359;  Burr  v.  Ease,  168  Pa.  81;  Insurance  Co.  v.  Mardorf,  152 
Pa.  22. 

Article  97a. 
burden  of  proof  when  parties  stand  in  a  fiduciary 
relation. 
When  persons  stand  in  a  relation  to  each  other  of  such  a 
nature  that  the  one  reposes  confidence  in  the  other,  or  is 
placed  by  circumstances  under  his  authority,  control  or 
influence,  when  the  question  is  as  to  the  validity  of  any 
transaction  between  them  from  which  the  person  in  whom 
confidence  is  reposed  or  in  whom  authority  or  influence  is 
vested  derives  advantage,  the  burden  of  proving  that  the 
confidence,  authority  or  influence  was  not  abused,  and  that 
the  transaction  was  in  good  faith  and  valid,  is  on  the  person 
in  whom  such  confidence  or  authority  or  influence  is  vested, 
and  the  nature  and  amount  of  the  evidence  required  for  this 
purpose  depends  upon  the  nature  of  the  confidence  or  au- 
thority, and  on  the  character  of  the  transaction.20 

20  See  Story's  '  Equity,'  para.  307  and  following.  Also  Taylor,  s.  151 
and  following.  The  illustrations  of  the  principle  are  innumerable,  and: 
very  various. 


Chap.  XIII.]  THE   LAW   OF  EVIDENCE.  489 


AMERICAN  NOTE. 
General. 

Authorities. —  27  Am.  &  Eng.  Encyclopaedia  of  Law  (1st  ed.), 
p.  452  et  seq.;  Pomeroy's  Equity  Jurisprudence,  sees.  943-9G3 
Darlington's  Estate,  147  Pa.  St.  624;  Roby  v.  Colehour,  135  I1L  300 
Porter  v.  Bergen,  54  N.  J.  Eq.  405;  Lauere  v.  Reynolds,  35  Minn 
476;  McConkey  v.  Cockey,  69  Md.  286;  Bogie  v.  Nolan,  96  Md.  86 
Gates  v.  Cornett,  72  Mich.  420;  Stepp  v.  Frampton,  179  Pa.  St.  284 
Burnham  v.  Heselton,  82  Me.  495;  Whipple  v.  Barton,  63  N.  H.  613 
Sr.  Leger's  Appeal,  34  Conn.  450;  Livingston's  Appeal,  63  Conn.  78 
Richmond's  Appeal,  59  Conn.  247. 

Where  a  person  stands  in  a  relation  of  special  confidence  towards 
another  and  has  with  him  some  transaction  from  which  he  derives 
benefit,  such  transaction  will  not  be  sustained  in  equity  unless  it 
was  fair  in  itself  and  its  nature  and  effect  fully  understood. 
Nichols  v.  McCarthy,  53  Conn.  318. 

And  the  burden  of  proof  is  on  the  person  claiming  the  benefit  of 
the  transaction  to  show  these  facts.  Nichols  v.  McCarthy,  53  Conn. 
323. 

One  partner  cannot  take  any  unlawful  advantage  of  his  copartners, 
but  the  burden  is  not  upon  him  to  show  affirmatively  that  his  pur- 
chase of  the  interest  of  his  copartner  was  fair.  Nirdlinger  v.  Bern- 
heimer,  90  Hun,  290;  affirmed,  on  opinion  below,  in  153  N.  Y.  652. 
See  133  N.  Y.  45,  reversing  33  N.  Y.  St.  R.  1019. 

Attorney  and  client.—  Pet rie  v.  Williams,  68  Hun,  589,  52  N.  Y. 
St.  R.  587.  See  same  case,  88  Hun,  292,  153  N.  Y.  671;  Matter  of 
Cohen,  84  Hun,  586,  66  N.  Y.  St.  R.  325 ;  Findley  v.  Leary,  87  Hun,  8, 
67  N.  Y.  St.  R.  488;  Marden  v.  Dorthy,  12  App.  Div.  176,  42  N.  Y. 
Supp.  834.    See  same  case,  12  App.  Div.  188,  42  N.  Y.  Supp.  827. 

Fiduciary  relations. — In  case  of  confidential  relationship,  the  bur- 
den is  upon  the  one  claiming  benefit  from  the  transaction.  Smith 
v.  Cuddy,  96  Mich.  562,  56  N.  W.  89;  Brennan  v.  Zehner,  97  Mich. 
98;  Gates  v.  Cornett,  72  Mich.  420. 

Where  a  director  makes  a  contract  with  a  corporation,  the  burden 
is  upon  him  to  snow  good  faith.  Miner  v.  Belle  Isle  Ice  Co.,  93  Mich. 
97. 


490  A    DIGEST    OF  [Part  III. 

Evidence  that  parties  had  lived  together  in  adulterous  intercourse 
is  pertinent  as  a  fact  tending  to  prove  the  existence  of  undue  influ- 
ence in  procuring  a  deed.     Wallace  v.  Harris,  32  Mich.  380. 

New    Jersey. 

General  rule. —  Farmer  v.  Farmer,  39  N.  J.  Eq.  211;  Dunn  v. 
Dunn,  42  N.  J.  Eq.  431;  Traphagen  v.  Yoorhees,  44  N.  J.  Eq.  21; 
Mott  v.  Mott,  49  N.  J.  Eq.  192;  Porter  v.  Bergen,  54  N.  J.  Eq.  405. 

Attorney  and  client. —  The  burden  of  proving  that  a  transaction 
between  an  attorney  and  a  client  was  a  fair  one  is  on  the  attorney. 
Gondii  v.  Blackwell,  22  N.  J.  Eq.  481;  Porter  v.  Bergen,  54  N.  J. 
Eq.  405;   Broivn  v.  Bulkley,  13  N.  J.  Eq.  451. 

Spiritual  adviser. —  The  relationship  of  priest  and  parishioner  raises 
no  presumption  of  undue  influence  where  the  spiritual  adviser  is 
made  residuary  legatee.  Distinguishing  gifts  inter  vivos.  Sparks' 
Case,  63  N.  J.  Eq.  242. 

Conveyance  by  parishioner  to  priest,  burden  of  proof  on  the 
latter.      Corrigan  v.   Pironi,  4S  N.  J.   Eq.   607. 

Guardians  and  trustees. —  For  a  guardian  to  obtain  a  discharge,  he 
must  satisfy  the  court  as  to  any  disputed  items.  Pyatt  v.  Pyatt, 
44  N.  J.  Eq.  491;  reversed,  46  N.  J.  Eq.  285. 

Burden  of  proof  on  an  accounting  trustee.  McCnlloch  v.  Tomp- 
kins, 62  N.  J.  Eq.  262. 

The  burden  of  proving  that  an  item  in  a  guardian's  account  is 
false  is  on  the  ward  only  when  the  guardian  has  complied  with  the 
law.     Burnham  v.  Dulling,  16  N.  J.  Eq.  144. 

Principal  and  agent. —  The  rule  applies  where  an  agent  takes  title 
to  property  of  which  he  is  in  charge,  though  the  agent  be  the  child 
of  the  principal.    Le  Gendre  v.  Byrnes,  44  N.  J.  Eq.  372. 

Husband  and  wife. —  The  rule  applies  when  a  husband  procures 
his  wife  to  execute  a  deed  of  trust  by  which  he  secures  an  advan- 
tage.    Hall  v.  Otterson,  52  N.  J.  Eq.  522,  53  N.  J.  Eq.  695. 

When  property  is  transferred  by  a  wife  to  a  husband  for  the  bat- 
ter's benefit,  the  burden  of  proving  undue  influence  is  on  the  wife. 
Ourtis  v.  Grossley,  59  N.  J.  Eq.  358. 

Confidential  relation. —  Burden  of  proof  may  shift  from  one  im- 
peaching his  deed  to  the  one  upholding  it,  in  case  the  former  proves 


€hap.  XIII.]  THE   LAW   OF  EVIDENCE.  4D1 

that   he   is   illiterate  and   that  the   deed   was   read   to   him   by   the 
grantee  only.     Suffeni  v.  Butler,  19  N.  J.  Eq.  202. 

Confidential  companion  and  business  adviser  was  sole  beneficiary 
under  a  will ;  burden  of  proving  undue  influence  was  on  contestants. 
Wheeler  v.  Whipple,  44  N.  J.  Eq.   141,  45  N.  J.  Eq.  3G7. 

Burden  of  proof  is  upon  a  beneficiary  who  had  the  testator  under 
his  control.  Carroll  v.  Hause,  48  N.  J.  Eq.  2G9;  Boisaubin  v.  Bois- 
aubin,  51  N.  J.  Eq.  252. 

Maryland. 

The  doctrine  applied  to  transactions  between  persons  occupying 
confidential  relations  does  not  apply  to  gifts  by  will.  Tyson  v. 
Tyson,  37  Md.  567;   Griffith  v.  Diffenderffer,  50  Md.  460. 

Proof  that  a  conveyance  for  an  inadequate  consideration  was 
made  by  an  illiterate  old  man  in  his  last  illness  to  his  business 
agent  and  adviser  raises  a  presumption  of  undue  influence.  Zim- 
merman v.  Biiner,  79  Md.   115. 

Guardian  and  ward. —  McConkcy  v.  Cockey,  69  Md.  286. 

Parent  and  child. —  The  burden  of  proving  good  faith  is  not  upon 
a  child  who  is  the  donee  in  a  voluntary  conveyance  from  his  parent. 
Bauer  v.  Bauer,  82  Md.  241. 

Principal  and  agent. —  As  to  ti'ansactions  between  principal  and 
agent,  the  burden  of  proving  good  faith  is  on  the  agent.  Brown  v. 
Trust  Co.,  87  Md.  377.  But  this  rule  does  not  apply  when  the 
transaction  in  question  was  not  related  to  the  subject  of  the  agency. 
Id. 

Pennsylvania. 

Confidential  relation. —  Where  a  testator's  son,  who  is  largely  pre- 
ferred, was  the  confidential  agent  of  his  father,  the  burden  of  proof 
is  on  him  to  show  no  undue  influence.     Miller  v.  Miller,  187  Pa.  572. 

Where  circumstances  show  that  the  parties  did  not  deal  on  equal 
terms,  but  that  one  had  overmastering  influence  while  the  other 
was  old,  infirm,  and  dependent,  the  burden  of  proving  the  transac- 
tion to  be  fair  is  on  the  former.     Stepp  v.  Frampton,  179  Pa.  284. 

A  beneficiary  who  has  procured  a  will  to  be  written  for  his  benefit 
by  one  whose  faculties  are  impaired  must  sustain  the  burden  of 
proof.     Caven  v.  Agnew,  186  Pa.  314. 

The  donee  of  a  large  voluntary  gift  must  show  that  the  donor 
knew  and  understood  what  he  was  doing.  Neal  v.  Black,  177  Pa. 
S3;   Clark  v.  Clark.  174  Pa.  309. 


492  A    DIGEST   OF  [Part  III. 

Parent  and  child. —  Burden  of  proof  is  not  on  a  child  to  show  that 
a  voluntary  deed  from  his  parent  was  fair  and  conscionable.  Car- 
ney v.  Carney,  196  Pa.  34;  Clark  v.  Clark,  174  Pa.  309. 

"  Business  dealings  between  parents  and  children  and  other  near 
relatives  are  not  per  se  fraudulent;  they  must  be  treated  just  as 
are  the  transactions  between  ordinary  debtors  and  creditors,  and 
where  the  bona  fides  of  their  transactions  is  attacked,  the  fraud  must 
be  clearly  proved."  Reehling  v.  Byers,  94  Pa.  316;  Coleman's  Estate, 
193  Pa.   605    (reviewing  many  cases). 

Husband  and  wife. —  No  presumption  that  a  deed  from  husband  to 
wife  without  any  valuable  consideration  was  obtained  through  un- 
due influence.     Ford  v.  Ford,  193  Pa.  530. 


Chap.  XIV.]  THE   LAW   OF  EVIDENCE.  493 

CHAPTER    XIV. 

02V  PRESUMPTIONS  AND  ESTOPPELS.  * 

Article  98. 

presumption  of  legitimacy. 

The  fact  that  any  person  was  born  during  the  continuance 
of  a  valid  marriage  between  his  mother  and  any  man,  or 
within  such  a  time  after  the  dissolution  thereof  and  before 
the  celebration  of  another  valid  marriage,  that  his  mother's 
husband  could  have  been  his  father,  is  conclusive  proof 
that  he  is  the  legitimate  child  of  his  mother's  husband, 
unless  it  can  be  shown — 

either  that  his  mother  and  her  husband  had  no  access  to 
each  other  at  any  time  when  he  could  have  been  begotten, 
regard  being  had  both  to  the  date  of  the  birth  and  to  the 
physical  condition  of  the  husband, 

or  that  the  circumstances  of  their  access  (if  any)  were 
such  as  to  render  it  highly  improbable  that  sexual  inter- 
course took  place  between  them  when  it  occurred. 

^Neither  the  mother  nor  the  husband  is  a  competent  wit- 
ness as  to  the  fact  of  their  having  or  not  having  had  sexual 
intercourse  with  each  other  (unless  the  proceedings  in  the 
course  of  which  the  question  arises  are  proceedings  insti- 
tuted in  consequence  of  adultery1), nor  are  any  declarations 
by  them  upon  that  subject  deemed  to  be  relevant  facts 
when  the  legitimacy  of  the  woman's  child  is  in  question, 

*  See  Note  XXXV.  i  32  &  33  Vict.  c.  68.  s.  3. 


494  A    DIGEST    OF  [Part  III. 

whether  the  mother  or  her  husband  can  be  called  as  a  wit- 
ness or  not,  provided  that  in  applications  for  affiliation  or- 
ders when  proof  has  been  given  of  the  non-access  of  the 
husband  at  any  time  when  his  wife's  child  could  have  been 
begotten,  the  wife  may  give  evidence  as  to  the  person  by 
whom  it  was  begotten.2  Letters  written  by  the  mother 
may,  as  part  of  the  res  gestce,  be  admissible  evidence  to* 
show  illegitimacy,  though  the  mother  could  not  be  called  as 
a  witness  to  prove  the  statements  contained  in  such  letters.3 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  28,  344;. 
vol.  2,  sees.  150-153;  13  Am.  &  Eng.  Encyclopaedia  of  Law  (1st  ed.), 
p.  225;  3  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  873;  Grant 
v.  Mitchell,  83  Me.  23;  Pittsford  v.  Chittenden,  58  Vt.  69;  Sullivan  v. 
Kelly,  3  Allen  (Mass.),  148,  150;  Phillips  v.  Allen,  2  Allen  (Mass.), 
453;  Abington  v.  Dunbury,  105  Mass.  287;  Bowers  v.  Wood,  143 
Mass.  182;  Patterson  v.  Gaines,  6  How.  (U.  S.)  550;  State  v.  Lavint 
80  la.  555;  Bullock  v.  Knox,  96  Ala.  195;  Watts  v.  Owens,  62  Wis. 

2R.  v.  Luffe,  1807,  8  Ea.  190,  at  p.  207;  Cope  v.  Cope,  1833,  1  Mo. 
&  Ro.  269  and  at  p.  273;  Legge  v.  Edmonds,  1856,  25  L.  J.  Eq.  125, 
see  p.  135;  R.  v.  Mansfield,  1841,  1  Q.  B.  444;  Morris  v.  Daviesf 
1825,  3  C.  &  P.  215.  See,  as  an  illustration  of  these  principles, 
Eawes  v.  Draeger,  1883,  23  Ch.  Div.  173.  I  am  not  aware  of  any  de- 
cision as  to  the  paternity  of  a  child  born  say  six  months  after  the  death 
of  one  husband,  and  three  months  after  the  mother's  marriage  to 
another  husband.  Amongst  common  soldiers  in  India  such  a  question 
might  easily  arise.  The  rule  in  European  regiments  is  that  a  widow  not 
remarried  within  the  year  (it  used  to  be  six  months)  must  leave  the- 
ro<ziment;  the  result  was  and  is  that  widowhoods  are  usually  very 
short. 

3  Aylesford  Peerage  Case,  1885,  11  App.  Ca.  1,  in  which  the  general 
rule  stated  above  is  considered  and  affirmed. 


Chap.  XIV.]  THE  LAW   OF  EVIDENCE.  495 

512;  Egbert  v.  Greenwalt,  44  Mich.  245;  Scanlon  v.  Walshe,  81  Md. 
118;  Goss  v.  Froman,  89  Ky.  318;  Scott  v.  Hillenberg,  85  Va.  245. 

The  presumption  holds  even  if  the  parties  are,  while  still  married, 
living  apart  by  consent.    Hemingway  v.  Touner,  1  Allen  (Mass.),  29. 

If  the  husband  has  access  his  impotency  must  be  clearly  proved  in 
order  to  rebut  the  presumption  stated  in  the  text.  Com.  v.  Wenz,  1 
Ashm.  (Pa.)  269;  State  v.  Goode,  10  Ir.  L.  (N.  C.)  49;  State  v. 
Broadway,  69  N.  C.  411. 

Non-access. —  Sustaining  text.  Wright  v.  Hicks,  12  Ga.  155,  56 
Am.  Dec.  451 ;  Com.  v.  Shepherd,  6  Binn.  (Pa.)  283,  6  Am.  Dec.  449; 
Dean  v.  State,  24  Ind.  483. 

Proof  of  non-access. —  The  non-access  may  be"  proved  by  circum- 
stantial evidence,  not  alone  by  witnesses  who  could  testify  that  the 
husband  was  constantly  at  a  distance  from  the  wife.  Pittsford  v. 
Chittenden,  58  Vt.  49;  State  v.  Pettaway,  3  Hawks.    (N.  C.)   623. 

Evidence  of  husband  or  wife. — Sustaining  text.  Dennison  v.  Paige, 
29  Pa.  St.  420;  Com.  v.  Shepherd,  6  Binn.  (Pa.)  273;  Parker  v. 
Way,  15  N.  H.  45;  Stegall  v.  Stegall,  2  Brock.  (U.  S.)  256;  Klein- 
hart  v.  Ehlers,  38  Pa.  St.  439 ;  Clapp  v.  Clapp,  97  Mass.  531 ;  Wright 
v.  Hicks,  15  Ga.  160;  State  v.  Herman,  13  Ired.  (N.  C.)  502;  Hem- 
mingway  v.  Touner,  1  Allen  (Mass.),  209. 

"  Non-access  cannot  be  proved  by  either  the  husband  or  the  wife 
whether  the  proceeding  is  one  of  settlement,  or  bastardy,  or  to  re 
cover  property  claimed  as  heir-at-law."  Dennison  v.  Paige,  29  Pa.  St 
420,  72  Am.  Dec.  644.  See  also  Cranford  v.  Blackburn,  17  Md.  49 
77  Am.  Dec.  323;  Easley  v.  Com.  (Pa.),  11  Atl.  220;  Com.  v.  Strieker 
1  Browne  (Pa.),  xlvii,  appendix;  Com.  v.  Shepherd,  6  Binn.  (Pa 
283,  6  Am.  Dec.  449 ;  Corson  v.  Corson,  44  N.  H.  587 ;  Boykin  v.  Boy 
kin,  70  N.  C.  262,  16  Am.  Rep.  776;  Egbert  v.  Greenwalt,  44  Mich 
246,  38  Am.  Rep.  260;  Tioga  Co.  v.  So.  Creek  Tp.,  75  Pa.  St.  436 
(stating  the  reason  of  the  rule)  ;  Mink  v.  State,  60  Wis.  583,  50  Am. 
Rep.  386. 

Evidence. —  Matter  of  Taylor,  9  Paige,  611. 

Declaration  of  parties. —  Sustaining  text.  Matter  of  Taylor,  9 
Paige,  611. 

The  marriage  of  parents,  since  deceased,  may  be  shown  by  declara- 
tions made  ante  litem  niotam.     Canjolle  v.  Ferrie,  23  N.  Y.  90. 

Presumption  of  legitimacy. —  Harrorth  v.  Gill,  30  Ohio  St.  627 ; 
Sutphin  v.  Cox,  1   Weekly  Law  Mag.  346;   Schaffer  v.   Mueller,   9 


496  A  DIGEST  OF  [Past  III. 

Weekly  Law  Bulletin,  287;  Roth  v.  Jacobs,  21  Ohio  St.  646;  Miller 
v.  Anderson,  43  Ohio  St.  473;  Ives  v.  McNicoll,  59  Ohio  St.  402. 

Evidence  of  non-intercourse  for  more  than  a  year,  continuing  to 
within  five  months  of  the  birth  of  a  child,  rebuts  the  presumption  of 
legitimacy.     Dean  v.  State  ex  rel.  Marrical,  29  Ind.  483. 

The  testimony  of  a  wife  is  inadmissible  to  show  the  illegitimacy 
of  her  child.     Egbert  v.  Greenwait,  44  Mich.  245. 

Where  husband  and  wife  live  together,  there  is  a  presumption  of 
legitimacy.     Egbert   v.   Greenwait,  44  Mich.   245. 

"  Non-access  cannot  be  proved  by  either  the  husband  or  the  wife, 
whether  the  proceeding  is  one  of  settlement  or  bastardy,  or  to  recover 
property  claimed  as  heir-at-law."  Egbert  v.  Greenwait,  44  Mich. 
246,  38  Am.  Rep.  260. 

Testimony  against  legitimacy. —  A  party  cannot  testify  to  any- 
thing which  would  tend  to  rebut  the  presumption  of  the  legitimacy 
of  children  born  in  lawful  wedlock  and  which  public  policy  requires 
to  be  preserved,  in  an  action  for  seduction,  but  may  testify  to  inter- 
course with  the  defendant,  since  conception  is  not  an  essential  ele- 
ment to  the  cause  of  action.     Rabike  v.  Baer,  115  Mich.  328." 

New    Jersey. 

A  bastardy  Avarrant  may  issue  even  in  case  the  woman  is  mar- 
ried, but  the  nonaccess  of  her  husband  must  be  affirmatively  shown. 
State  v.  Overseer,  4  Zab.  533. 

Maryland. 

A  child  born  in  lawful  wedlock  is  presumed  to  be  legitimate. 
Nonaccess  of  the  husband  may  be  proved,  but  not  by  testimony  of 
the  mother  or  an  adulterer.     Scanlon  v.  Walshe,  81  Md.  118. 

Nonaccess  cannot  be  proved  by  either  the  husband  or  the  wife, 
whether  the  proceeding  is  one  of  settlement,  or  bastardy,  or  to 
recover  property  claimed  as  heir-at-law.  See  Crauford  v.  Blackburn, 
17  Md.  49,  77  Am.  Dec.  323. 

Pennsylvania. 

Presumption  of  legitimacy. — After  the  lapse  of  ninety  years  it  re- 
quires very  strong  evidence  to  overcome  the  presumption.  Pickens' 
Estate,  163  Pa.  14. 

"  Nonaccess  cannot  be  proved  by  either  the  husband  or  the  wife, 
whether  the  proceeding  is  one  of  settlement,  or  bastardy,  or  to  re- 


Chap.  XI V.J  THE  LAW  OF  EVIDENCE.  497 

cover  property  claimed  as  heir-at-law."  Dennison  v.  Paige,  29  Pa. 
420,  72  Am.  Dec.  644;  Com.  v.  Shepherd,  6  Binn.  273;  Kleinhart  v. 
Ehlers,  38  Pa.  439;  Easley  v.  Com.,  11  Atl.  220;  Com.  v.  Strieker, 
1  Browne,  xlvii,  appendix;  Tioga  Co.  v.  South  Creek  Tp.,  75  Pa.  436 
(stating  the  reason  of  the  rule). 

If  the  husband  has  access  his  impotency  must  be  clearly  proved  in 
order  to  rebut  the  presumption  stated  in  the  text.  Com.  v.  Wenz, 
1  Ashm.  269. 

Husband  and  wife  competent  to  prove  such  facts  in  action  be- 
tween third  parties.     Janes'  Estate,  147  Pa.  527. 

There  is  no  presumption  that  one  who  marries  the  mother  of  a 
bastard  child  is  the  father  of  it.     Janes1  Estate,  147  Pa.  527. 

Article  99. 
presumption  of  death  from  seven  years'  absence. 

A  person  shown  not  to  have  been  heard  of  for  seven  years 
by  those  (if  any)  who  if  he  had  been  alive  would  naturally 
have  heard  of  him,  is  presumed  to  be  dead  unless  the  cir- 
cumstances of  the  case  are  such  as  to  account  for  his  not 
being  heard  of  without  assuming  his  death ;  but  there  is  no 
presumption  as  to  the  time  when  he  died,  and  the  burden 
of  proving  his  death  at  any  particular  time  is  upon  the  per- 
son who  asserts  it.4 

There  is  no  presumption  as  to  the  age  at  which  a  person 
died  who  is  shown  to  have  been  alive  at  a  given  time,  or  as 

^McMahon  v.  McElroy,  18(19,  5  Ir.  Rep.  Eq.  1;  Hopewell  v.  De 
Pinna,  1809,  2  Camp.  113;  Nepean  v.  Doe,  1837,  2  S.  L.  C.  542, 
632;  Nepean  v.  Knight,  2  M.  &  W.  1837,  894,  912;  R.  v.  Lumley, 
1869,  1  C.  C.  R.  196;  and  see  the  caution  of  Lord  Denman  in  R.  v. 
Harbome,  1835,  2  A.  &  E.  at  p.  544.  All  the  cases  are  collected  and 
considered  in  In  re  Phene's  Trust,  1869,  5  Ch.  App.  139.  The  doctrine 
is  also  much  discussed  in  Prudential  Assurance  Company  v.  Edmonds, 
1877,  2  App.  Cas.  487.  The  principle  is  stated  to  the  same  effect  as  in 
the  text  in  Re  Corbishley's  Trusts,  1880,  14  Ch.  Div.  846. 

32 


499  A  DIGEST  OF  [Paht  III. 

to  the  order  in  which  two  or  more  persons  died  who  are 

shown  to  have   died  in  the  same  accident,    shipwreck,  or 

battle.5 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  30,  41;. 
McKelvey  on  Evidence,  p.  67;  Johnson  v.  Merithew,  80  Me.  Ill; 
Winship  v.  Conner,  42  N.  H.  341. 

First  paragraph  of  text.  Stockbridge's  Case,  145  Mass.  517 ;  Davie 
v.  Briggs,  97  U.  S.  628;  Hoyt  v.  Newbold,  45  N.  J.  L.  219;  Cooper  v. 
Cooper,  86  Ind.  75;  State  v.  Henke,  58  la.  457;  University  v.  Harri- 
son, 90  N.  C.  385;  Shriver  v.  State,  65  Md.  278;  Flood  v.  Growney, 
126  Mo.  262. 

Absence  alone  does  not  raise  the  presumption.  There  must  be  other 
circumstances,  such  as  the  failure  of  friends  to  hear  from  the  absent 
one.    Sensendefer  v.  Pacific,  etc.,  Ins.  Co.,  19  Fed.  Rep.  68. 

The  courts  should  exercise  caution  in  applying  the  rule  of  the  text. 
Shown  v.  Maclcin,  9  Lea   (Tenn.),  601. 

Time  of  death. —  Sustaining  text  as  to  the  rule  that  there  is  no 
presumption  as  to  time  of  death.  1  Am.  &  Eng.  Encyclopaedia  of  Law 
(1st  ed.),  p.  39,  and  cases  cited. 

Bigamy. —  As  to  effect  of  presumption  in  bigamy  prosecution,  see 
Com.  v.  Mash,  7  Mete.  472. 

Same  calamity. —  Sustaining  last  paragraph  of  text.  Coy  v. 
Leach,  8  Mete.  (Mass.)  371,  372,  41  Am.  Dec.  518;  Fuller  v.  Linzee, 
135  Mass.  468;  Russell  v.  Hallett,  23  Kan.  276;  Paden  v.  Briscoe,  81 
Tex.  563.  See  Ehlis  v.  Will,  73  Wis.  445;  Johnson  v.  Merthew,  80 
Me.  111. 

Loss  of  vessel. —  A  presumption  that  a  vessel  has  been  lost  arises 
after  a  reasonable  time  has  passed  without  news  of  her.  Clifford  v. 
Thomaston  Mutual  Ins.  Co  ,  50  Me.  209,  79  Am.  Dec.  606. 

Presumption  of  death  from  absence. —  Rice  v.  Lumley,  10  Ohio 
St.  596;  Stover  v.  Bounds,  1  Ohio  St.  107,  52  Ohio  St.  362;  Rosen- 
thal v.  Mayhugh,  33  Ohio  St.  155;  Brent  v.  First,  41  Ohio  St.  436; 
Youngs  v.  Beffner,  36  Ohio  St.  232;  Mayhugh  v.  Rosenthal,  1  Cine. 
Super.  Ct.  Rep.  492;  Whalen  v.  State,  5  Circ.  Dec.  488,  12  Ohio  Circ. 
Ct.  586. 

SWing  v.  Angrave,  1860,  8  H.  L.  C.  183,  198;  and  see  authorities 
in  last  note. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  499 

The  wife  of  one  who  has  been  absent  within  the  rule  of  the  text 
may  marry  again.  The  fact  that  she  has  sued  him  for  divorce  is 
not  an  admission  that  he  was  not  dead.  Supreme  Commandery  v. 
Everding,  20  Ohio  Circ.  Ct.   689,   11   Circ.  Dec.  419. 

Presumption  rebuttable. —  The  presumption  is  rebuttable.  Youngs 
v.  Heffner,  36  Ohio  St.  232;  Mayhugh  v.  Rosenthal,  1  Cine.  Super. 
Ct.   Rep.   492. 

Persons  not  heard  from  for  seven  years  presumed  to  be  dead. 
Whiting  v.  Nicholl,  46  111.  230;  Reedy  v.  Camfteld,  159  111.  254; 
Reedy  v.  Millizen,  155  111.  626,  636. 

If  a  person  has  been  heard  from  within  seven  years  the  presump- 
tion of  death  does  not  exist.  Sinsheimer  v.  Skinner  Mfg.  Co.,  165 
111.  116,  reversing  54  111.  App.  151. 

In  civil  cases,  death  may  be  proved  by  circumstantial  evidence. 
John  Hancock,  etc.,  Co.  v.  Moore,  34  Mich.  41. 

Presumption  of  life  as  to  a  person  of  whom  no  account  is  given 
at  the  end  of  seven  years.  Bailey  v.  Bailey,  36  Mich.  181.  See,  also, 
People  v.  Eaton,  59  Mich.  559. 

New    Jersey. 
Authorities. —  Osoom  V.  Allen,  26  N.  J.  L.  388;   Den  v.  Brown,  2 
Hal.  307. 

First  paragraph  of  text.     Hoyt  v.  Newbold,  45  N.  J.  L.  219. 

Where  plaintiffs  alleged  that  J.  B.  S.  had  been  absent  from  the 
State  for  more  than  seven  years  without  having  been  heard  from, 
and  the  defendants  admitted  the  absence  but  alleged  on  informa- 
tion and  belief  that  he  had  been  heard  from,  the  burden  of  proving 
that  J.  B.  S.  is  alive  is  on  the  defendants.  Smith  v.  Smith,  5  N.  J. 
Eq.  484. 

The  New  Jersey  statute  was  designed  to  furnish  a  presumption 
as  to'  the  time  of  death  as  well  as  of  the  fact  of  death  after  seven 
years.  Ex'rs  of  Clarke  v.  Canfield,  15  N.  J.  Eq.  119;  Wambaugh  v. 
Schenck,  Pen.  229. 

Presumption  is  that  the  absent  person  lived  through  the  seven 
years.     Ex'rs  of  Clarke  v.  Canfield,  15  N.  J.  Eq.  119. 

Maryland. 

Authorities. —  Presumption  of  death  arises  after  seven  years'  ab- 
sence unheard  from.  Tilly  v.  Tilly,  2  Bland.  436.  See  Lee  v.  Hoye, 
1  Gill,  188. 


500  A  DIGEST  OF  [Part  III. 

The  presumption  of  death  arises  after  seven  years'  absence  un- 
heard from,  but  there  is  no  presumption  that  the  person  died  with- 
out issue.  Chew  v.  Tome,  93  Md.  244;  Sprigg  v.  Moale,  28  Md. 
497. 

Mere  lapse  of  time  is  not  enough  to  raise  a  presumption  of  death; 
it  must  be  shown  that  the  person  has  not  been  heard  from.  Shriver 
v.  State,  65  Md.  278. 

One  is  presumed  to  be  dead'  if  he  would  be  over  ninety  were  he 
living.     Stevenson  v.  Howard,  3  H.  &  J.  554. 

Death  in  common  disaster. —  Where  several  die  in  the  same  dis- 
aster, there  is  no  presumption  whatever  as  to  the  order  of  their 
death  or  that  they  died  at  the  same  time.  Survivorship  must  be 
proved  by  one  asserting  it.     Cowman  v.  Rogers,  73  Md.  403. 

Time  of  death. —  The  presumption  is  that  the  person  lived  through 
the  seven  years.     Scliaub  v.  Griffin,  84  Md.  557. 

Presumption  of  death  arises  after  absence  for  seven  years  un- 
heard from,  but  there  is  no  presumption  as  to  the  time  such  death 
occurred,  and  one  alleging  a  certain  time  must  prove  it.  Schaub  v. 
Griffin,  84  Md.   557. 

Pennsylvania. 

Presumption  of  death  arises  only  after  the  expiration  of  the 
seven  years,  in  the  absence  of  any  evidence  of  some  specific  peril 
encountered  by  the  party  before  that  time.  Insurance  premiums 
should  be  paid  through  the  seven  years.  Mutual  Benefit  Co.'s  Pe- 
tition, 174  Pa.  1. 

Aeticle   100. 

*  presumption  of  lost  grant. 

When  it  has  been  shown  that  any  person  has,  for  a  long 
period  of  time,  exercised  any  proprietary  right  which  might 
have  had  a  lawful  origin  by  grant  or  license  from  the  Crown 
or  from  a  private  person,  and  the  exercise  of  which  might 
and  naturally  would  have  been  prevented  by  the  persons 
interested  if  it  had  not  had  a  lawful  origin,  there  is  a  pre- 

*  The  subject  of  the  doctrine  of  lost  grants  is  much  considered  in 
Angus  v.  Dalton,  3  Q.  B.  D.  84,  1881,  6  App.  Cas.  740. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  501 

sumption  that  such  right  had  a  lawful  origin  and  that  it 
was  created  by  a  proper  instrument  which  has  been  lost. 

Illustrations. 

(a)  The  question  is,  whether  B  is  entitled  to  recover  from  A  the  pos- 
session of  lands  which  A's  father  and  mother  successively  occupied 
from  1754  to  1792  or  1793,  and  which  B  had  occupied  (without  title) 
from  1793  to  1809.  The  lands  formed  originally  an  encroachment  on 
the  Forest  of  Dean. 

The  undisturbed  occupation  for  thirty-nine  years  raises  a  presump- 
tion of  a  grant  from  the  Crown  to  A's  father.^ 

(6)  A  fishing  mill-dam  was  erected  more  than  110  years  before  1861 
in  the  River  Derwent,  in  Cumberland  (not  being  navigable  at  that 
place),  and  was  used  for  more  than  sixty  years  before  1861  in  the 
manner  in  which  it  was  used  in  1861.  This  raises  a  presumption  that 
all  the  upper  proprietors  whose  rights  were  injuriously  affected  by  the 
dam  had  granted  a  right  to  erect  it.7 

(c)  A  borough  corporation  proved  a  prescriptive  right  to  a  several 
oyster  fishery  in  a  navigable  tidal  river.  The  free  inhabitants  of  an- 
cient tenements  in  the  borough  proved  that  from  time  immemorial  and 
claiming  as  of  right  they  had  dredged  for  oysters,  within  the  limits  of 
the  fishery,  from  Feb.  2  to  Easter  Eve  in  each  year.  The  Court  pre- 
sumed a  grant  from  the  Crown  to  the  corporation  before  legal  memory 
of  a  several  fishery,  with  a  condition  in  it  that  the  free  inhabitants  of 
ancient  tenements  in  the  borough  should  enjoy  such  a  right.8 

(d)  A  builds  a  windmill  near  B's  land  in  1829,  and  enjoys  a  free 
current  of  air  to  it  over  B's  land  as  of  right,  and  without  interruption 
till  1860.  This  enjoyment  raises  no  presumption  of  a  grant  by  B  of 
&•  right  to  such  a  current  of  air,  as  it  would  not  be  natural  for  B  to 
interrupt  it.9 


GGoodtitle  v.  Baldwin,  1809,  11  Ea.  488.  The  presumption  was 
rebutted  in  this  case  by  an  express  provision  of  20  Ch.  II.  c.  3,  avoiding 
grants  of  the  Forest  of  Dean. 

7  Leconfield  v.  Lonsdale,  1S70,  L.  R.  5  C.  P.  657. 

8  Goodman  v.  Mayor  of  Saltash,  1882,  7  App.  Ch.  633  (see  especially 
650).  Lord  Blackburn  dissented  on  the  ground  that  such  a  grant 
would  not  have  been  legal  (pp.  651-62).  See  same  case  in  1881, 
7  Q.  B.  D.  108,  and  1880,  5  C.  P.  D.  431,  both  of  which  were  re- 
versed. 

9  Webb  v.  Bird,  1863,  13  C.  B.   (N.  S.)  841. 


502  A    DIGEST   OF  [Pabt  III. 

(e)  No  length  of  enjoyment  of  water,  percolating  through  under- 
ground undefined  passages,  raises  a  presumption  of  a  grant  from  the 
owners  of  the  ground  under  which  the  water  so  percolates  of  a  right 
to  the  water.io 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  45-47;  2 
Wharton  on  Evidence,  sec.  348  et  seq.;  Sumner  v.  Child,  2  Conn.  628; 
Hart  v.  Chalker,  5  Conn.  315 ;  Charles  River  Bridge  v.  Warren  Bridge, 
7  Pick.  (Mass.)  344,  448,  449;  Gayetty  v.  Bethune,  14  Mass.  49; 
Coolidge  v.  Learned,  8  Pick.  (Mass.)  504;  Fletcher  v.  Fuller,  120 
U.  S.  534;  Carter  v.  Fishing  Co.,  77  Pa.  310;  Tex.  Hex.  Ry.  Co.  v. 
Uribe,  85  Tex.  386;  Frazier  v.  Brown,  12  0.  St.  294;  Chatfield  v.  Wil- 
son, 28  Vt.  49;  Lehigh  R.  R.  Co.  v.  McFarland,  43  N.  J.  L.  605; 
Ricard  v.  Williams,  7  Wheat.  (U.  S.)  59,  109;  Casey's  Lessee  v.  In- 
loes,  1  Gill  (Md.),  430,  39  Am.  Dec.  658;  Troivbridge  v.  Spinning 
( Wash. ) ,  54  L.  R.  A.  205. 

Title  to  corporeal  property  cannot  arise  from  the  doctrine  of 
implied  grant.  Sumner  v.  Child,  2  Conn.  628;  Price  v.  Lyon,  14 
Conn.  291. 

Presumption  of  grant.— C.  d-  /.  R.  R.  Co.  v.  Linn,  18  Ohio  St.  417 
(existence  of  road  over  canal  company's  land)  ;  Knoblock  v.  Bollin- 
ger, 9  Ohio  Circ.  Ct.  288,  o  Circ.  Dec.  427;  Bierce  v.  Pierce,  15 
Ohio,  520;  Harmon  v.  Kelley,  14  Ohio,  502,  7  Am.  Law  Rec.  411; 
Fitzpatrick  v.  Forsyth,  7  Am.  Law.  Rec.  411  (conveyance  of  fee)  , 
Schulte  v.  Beineke,  4  Nisi  Prius,  207,  4  Low.  Dec.  250;  Morris  v. 
Balkins,  8  Am.  Law  Rec.  577;  Lessees  of  Blake  v.  Davis,  20  Ohio, 
230;  T'iers,  Herring  v.  McDowell's  Petition,  Tappan,  89;  Frazier  v. 
Broicn,  12  Ohio  St.  294. 

The  presumption  arises  after  a  time  equal  to  that  prescribed  in 
the  Statute  of  Limitations.  Morrison  v.  Balkins,  8  Am.  Law  Rec. 
.577. 

If  the  existence  of  a  defective  grant  is  proved,  no  grant  can  be 
presumed  in  order  to  cure  the  defect.  Roads  v.  Symmes,  1  Ohio, 
281.   316. 

A  patent  from  the  Federal  government  for  lands  will  not  be  pre- 
Bumed.     Wallace's  Lessees  v.  Minor,  7  Ohio   (pt.  1).  249. 

w  Chasemore  v.  Richards,  1859,  7  H.  L.  C.  349. 


Chap.  XIV.J  THE  LAW  OF  EVIDENCE.  503 

A  deed  will  not  be  presumed  from  possession  for  less  than  the 
statutory  period.    Rosa  v.  Corwin,  3  Ohio,  407. 

Unless  unaccompanied  by  other  circumstances.  Coarcier  d  Re- 
vises v.   GraLam,   1   Ohio,   349. 

Presumption  rebuttable. —  The  presumption  is  rebuttable.  Wal- 
lace's Lessees  v.  Minor,  6  Ohio,  366,  7  Ohio  (pt.  1),  249. 

Underground  waters. —  The  doctrine  of  the  text  does  not  apply  to 
underground  waters  eventually  issuing  as  a  spring.  Frazier  v. 
Brown,   12  Ohio  St.  294. 

New   Jersey. 

Authorities. —  Lehigh  R.  R.  Co.  v.  McFarland,  43  N.  J.  L.  605. 

Title  by  adverse  possession  arises  out  of  a  presumption  of  a  lost 
grant.  Railroad  Co.  v.  McFarland,  30  X.  J.  Eq.  180,  31  X.  J.  Eq. 
706. 

A  presumption  of  the  existence  of  a  deed  may  be  raised  by  re- 
citals in  later  ones.     Fuller  ads.  Den.,  20  X.  J.  L.  61. 

As  to  the  circumstances  sufficient  to  induce  the  jury  to  presume 
the  existence  of  a  deed,  see  Den.  v.  Johnson,  2  Hal.  6. 

Maryland. 

Authority. —  Casey's  Lessee  v.  Inloes,  1  Gill,  430,  39  Am.  Dec.  658. 

A  conveyance  may  be  presumed  from  great  length  of  possession 
and  the  payment  of  taxes.  Cheney  v.  Watkins,  1  H.  &  J.  527.  See 
Cockey  v.  Smith,  3  H.  &  J.  20. 

Pennsylvania. 

Authority. —  Carter  v.  Fishing  Co.,  77  Pa.  310. 

Illustration  (e). —  Percolating  waters.  Wheatly  v.  Baugh,  25  Pa. 
528. 

There  is  no  presumption  that  an  order  of  court  was  made  au- 
thorizing a  certain  conveyance  because  it  would  be  a  matter  of 
record  and  its  loss  must  be  proved.     Baskin  v.  Seechrist,  6  Pa.   154. 

Presumption  of  a  grant  of  a  right  of  way  from  long  use  and 
other  circumstances.     Lewis  v.  Carstairs,  6  Whart.  193. 


504  A  DIGEST  OF  [PabtIIL 


Article  101.* 
peesumption  of  regularity  and  of  deeds  to  complete 

TITLE. 

When  any  judicial  or  official  act  is  shown  to  have  been 
done  in  a  manner  substantially  regular,  it  is  presumed  that 
formal  requisites  for  its  validity  were   complied  with. 

When  a  person  in  possession  of  any  property  is  shown  to 
be  entitled  to  the  beneficial  ownership  thereof,  there  is  a 
presumption  that  every  instrument  has  been  executed  which 
it  was  the  legal  duty  of  his  trustees  to  execute  in  order  to 
perfect  his  title.11 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  20,  38,  n., 
40,  n.;  Perry  on  Trusts  (4th  ed.),  sec.  349. 

Regularity. —  State  v.  Potter,  52  Vt.  33 ;  State  v.  Main,  69  Conn. 
140,  144;  Brownell  v.  Palmer,  22  Conn.  107,  119;  Ward  v.  Metro- 
politan Life  Ins.  Co.,  66  Conn.  239;  Gregory  v.  Brooks,  37  Conn.  372; 
Perry  v.  Reynolds,  53  Conn.  535 ;  Booth  v.  Booth,  7  Conn.  367 ;  Cog- 
gill  v.  Botsford,  29  Conn.  447;  Piatt  v.  Grover,  136  Mass.  115; 
Murray's  Heirs  v.  Erie,  59  Pa.  223;  Nofire  v.  U.  S.,  164  U.  S.  657; 
Schell's  Excrs.  v.  Fauche,  138  U.  S.  562;  Hogue  v.  Corbett,  156  111. 
540;  State  v.  Williams,  99  Mo.  291;  Sinclair  v.  Learned,  51  Mich. 
335. 

First  proposition  of  text. —  Rumsey  v.  N.  Y.  &  N.  E.  R.  R.  Co.r 
130  N.  Y.  88;  Wood  v.  Morehouse,  45  N.  Y.  368;  Sioarthout 
v.  Ranier,  143  N.  Y.  499,  504;  Kent  v.  Quicksilver  Mining  Co.,  78- 

*  See  Note  XXXVII. ,  and  Macdougall  v.  Furrier,  1830,  2  Dow.  & 
CI.  135,  433.  R.  v.  Cresswell,  1876,  1  Q.  B.  D.  (C.  C.  R.)  446,  is  a 
modern  illustration  of  the  effect  of  this  presumption. 

»  Doe  d.  Hammond  v.  Cooke,  1829,  6  Bing.  174,  179. 


Chap.  XIV.]  THE  LAW  OF  EVIDENCE.  505 

N.  Y.  159,  183;  Hilton  v.  Bender,  69  N.  Y.  75;  Jackson  v.  Shaffer, 
11  Johns.  513;  Wood  v.  Chapin,  13  N.  Y.  509-516,  67  Am.  Dec.  62. 

Until  the  contrary  appears  it  will  be  assumed  that  public  officers 
have  obeyed  the  law.  People  v.  Dalton,  61  N.  Y.  Supp.  263,  46  App. 
Div.  264. 

If  a  public  officer  has  no  recollection  of  the  circumstances  of  a  par- 
ticular case,  he  may  testify  as  to  the  routine  of  business  in  his  of- 
fice.   People  v.  Oyer  and  Terminer  of  New  York,  83  N.  Y.  436. 

Instances. —  An  officer  selling  property  under  an  execution  is  pre- 
sumed after  a  long  period  of  time  to  have  complied  with  the  re- 
quirements of  the  statute.    Leland  v.  Cameron,  31  N.  Y.  115. 

In  the  absence  of  proof  to  the  contrary,  a  public  officer  is  pre- 
sumed to  have  done  that,  the  omission  of  which  would  constitute  a 
neglect  of  duty.  Hence,  it  is  presumed  that  a  sheriff  properly  posted 
notices  of  a  sale  on  execution.  Wood  v.  Morehouse,  45  N.  Y.  368, 
affirming  1  Lans.  405. 

Regularity  of  official  acts. —  Ballance  v.  Underhill,  3  Scam.  453; 
Todemier  v.  Aspinwall,  43  111.  401 ;  Shattuck  v.  People,  4  Scam.  478 ; 
Governor  v.  Ridgway,  12  111.  14;  Clancy  v.  Elliott,  14  111.  456;  Buck- 
master  v.  Job,  15  111.  328;  Dyer  v.  Flint,  21  111.  80;  Hogue  v.  Corbit, 
156  111.  540;  Doyle  v.  Wiley,  15  111.  576  (in  laying  out  land)  ;  Chi- 
cago v.  Johnson,  53  111.  91  (laying  of  pavement)  ;  Dempster  v.  West, 
69  111.  613  (mortgage  sales)  ;  Harris  v.  Lester,  80  111.  307  (proceed- 
ings of  courts)  ;  Graves  v.  Coldwell,  90  111.  012  (proceedings  of 
courts)  ;  Anthony  v.  International  Bank,  93  111.  225  (seal  upon 
copies)  ;  Duncan  v.  Fletcher,  Breese,  252  (administering  oath  to 
referee)  ;  Lattin  v.  Smith,  Breese,  284  (acts  of  magistrate)  ;  Van- 
landingham  v.  Lowery,  1  Scam.  241  (proceedings  by  referee)  ;  Waldo 
v.  Averett,  1  Scam.  487  (appeal  bonds)  ;  Archer  v.  Spillman,  1  Scam. 
553. 

As  to  this  presumption  with  reference  to  legal  proceedings,  see 
Mulford  v.  Shepard,   1   Scam.   583;   Wilcox  v.   Woods,  3   Scam.  51 
Ballance  v.  Samuel,  3  Scam.  381;  Singleton  v.  W afford,  3  Scam.  577 
Russell  v.   Whiteside,  4  Scam.  7;    Burgwin  v.  Babcock,   11   111.  28 
Holmes  v.  People,  5  Gilm.  478;  Eaton  v.  Graham.,  11  111.  619;   Cody 
v.  Hough,  20  111.  43;   Cook  v.  Skelton,  20  111.   107;  Cook  v.  Renick, 
19  111.  598;   White  v.  People,  81  111.  323;   City  of  Virginia  v.  Hall, 
96   111.   278;    Allen  v.   People,   77    111.    484;    Maxcy   v.   Williamson 
County,  72  111.  207. 


506  A  DIGEST  OF  [Past  III. 

The  presumption  of  regularity  extends  to  the  action  of  jury  com- 
missioners.   Regent  v.  People,  96  111.  App.  189. 

There  is  a  presumption  that  legal  proceedings  are  regular.  Austin 
v.  Austin,  43  111.  App.  488. 

Proceedings  with  reference  to  highways  are  presumed  to  be  regular. 
Shields  v.  Roos,  158  111.  214. 

Recitals  in  sheriff's  deeds  are  prima  facie  correct.  Gardner  v. 
Eberhart,  82  111.  316. 

It  is  presumed  that  a  referee  was  sworn  according  to  law.  Story 
v.  Dcmarne,  77  111.  App.  74. 

A  sheriff's  certificate  of  sale  without  a  judgment  is  no  evidence 
of  title.     Curtis  v.  Sicearingen,  Breese,  160. 

The  presumption  that  officials  do  their  duty  does  not  extend  to 
officials  of  corporations.    T.  C.  Gas  Works  v.  People,  156  111.  387. 

That  one  was  an  officer  is  to  be  presumed  from  his  habitually 
acting  in  that  capacity.     Morrell  v.  People,  32  111.  499. 

Other  presumptions. — Facts  from  which  presumptions  arise  must 
be  proven  by  direct  evidence.  Morris  v.  /.  &  St.  L.  R.  R.  Co.,  10 
Brad.  389. 

As  to  charging  the  jury  concerning  presumptions,  see  Illinois 
Cent.  R.  R.  Co.  v.  Cragin,  71  111.  177. 

Possession. —  Possession  of  land  is  prima  facie  evidence  of  owner- 
ship.    Frank  v.  Palmer,  65  111.  App.  124. 

The  ownership  of  a  railroad  may  be  presumed  from  its  use.  Illi- 
nois Cent.  R.  It.  Co.  v.  Mills,  42  111.  407;  P.,  C.  &  St.  L.  R.  R.  Co.  v. 
Kunston,  69  111.  103;  T.,  P.  &  \Y.  Ry.  Co.  v.  Arnold,  49  111.  17S. 

The  possession  of  personal  property  is  prima  facie  evidence  of 
ownership.    Roberts  v.  Haskall,  20  111.  59. 

Where  one  is  in  possession  of  an  article  of  personal  property  and 
mortgages  it,  it  will  be  presumed  that  he  was  the  owner  of  it. 
Downey  v.  Arnold,  97   111.  App.   91. 

The  fact  that  a  note  is  in  one's  possession  is  some  evidence  of 
ownership.     Henderson  v.  Davisson,  157  111.  379. 

A  deed  found  in  the  grantee's  possession  is  presumed  to  have  been 
delivered.    Harshberger  v.  Carroll,  163  111.  636. 

Title  may  be  presumed  from  possession.  Keith  v.  Keith,  104  111. 
397;  Doty  v.  Burdick,  83  111.  473;  Herbert  v.  Herbert,  Breese,  278; 
Brooks  v.  Bruyn,  18  111.  539;  Burnap  v.  Cook,  32  111.  168;  Farwell 
v.  Meyer,  35  111.  40. 


Chap.  XIV.]  THE   LAW   OF  EVIDENCE.  507 

The  ownership  of  corporation  securities  is  presumed  from  posses- 
sion.   Higgins  v.  Lansingh,  154  111.  301. 

Presumption  of  guilt  from  possession  of  stolen  goods.  Conkright 
v.  People,  35  111.  204. 

As  to  presumption  under  the  bucket  shop  act,  see  Hurd's  Rev. 
Stat.,  chap.  38,  sec.  137c,  p.  592. 

Possession  of  stolen  property  evidence  of  theft.  Jupitz  v.  People, 
34  111.  516;  Conkright  v.  People,  35  111.  204;  Andrews  v.  People,  60 
111.  354;  Comfort  v.  People,  54  111.  404. 

As  to  evidence. —  The  failure  to  call  a  natural  witness  is  an  un- 
favorable circumstance.  Lebanon  Coal  &  Machine  Assn.  v.  Zerwick, 
77  111.  App.  486. 

Presumption  for  nonproduction  of  evidence  (letters).  Law  v. 
Woodruff,  48  111.  399. 

Presumption  from  the  destruction  or  fabrication  of  evidence.  Win- 
chell  v.  Edwards,  57  111.  41;  Downing  v.  Plate,  90  111.  268;  C.  C.  R. 
R.  Co.  v.  McMahon,  103  111.  4S5. 

There  is  a  presumption  that  papers  destroyed  were  against  the 
spoliator.     Tartar  v.  Keller,  167  111.  129. 

Matters  of  law. —  The  presumption  is  that  the  common  law  pre- 
vails in  another  State  as  interpreted  by  the  courts  of  this  State. 
Scaling  v.  Knollin,  94  111.  App.  443. 

Effect  of  statute  upon  common  law.  Cadwallader  v.  Harris,  76 
111.  370. 

Presumption  as  to  foreign  laws.  Crouch  v.  Hall,  15  111.  263; 
Tatman  v.  Strader,  23  111.  493,  495. 

It  is  presumed  that  the  common  law  is  in  force  in  another  State. 
Tan  Ingen  v.  Brabrock,  27  111.  App.  401. 

A  common-law  assignment  in  another  State  will  be  presumed  to 
be  regular.  Thompson  Co.  v.  Whitehead,  185  111.  454,  56  N.  E.  1106, 
affirming  86  111.  App.  76. 

It  will  not  be  presumed  that  a  chattel  mortgage,  fraudulent  at  the 
place  of  trial,  is  valid  by  the  law  of  the  State  where  it  was  made. 
Shannon  v.  Wolf,  173  111.  253,  50  N.  E.  682,  reversing  6S  111.  App. 
586. 

Payment. —  Payment  is  presumed  after  twenty-seven  years.  Lang- 
worthy  v.  Baker,  23  111.  484;  McCormicl;  v.  Evans,  33  111.   327. 

A  receipt  in  full  is  prima  facie  evidence  of  payment.  Walrath  v. 
Norton.  5  Gilm.  437:  Marston  v.  Wilcox.  1  Scam.  271.  Compare 
Bartholomew  v.  Bartholomew,  24  111.  199;  Fitzsimmons  v.  Allen,  39 
111.  440. 


608  A  DIGEST  OF  [Pabt  III. 

Identity. —  As  to  identity.  Lee  v.  Mendel,  40  111.  359;  Heacock  v. 
Lubukee,  108  111.  641;  Brown  v.  Metz,  33  111.  339;  Wickersham  v. 
People,  1  Scam.  128. 

Where  father  and  son  bear  the  same  name,  the  presumption  is  that 
the  father  is  intended.     Doty  v.  Doty,  159  111.  46. 

Honesty. —  There  is  a  presumption  that  men  are  honest  until  the 
contrary  is  proved.    Diefenthaler  v.  Hall,  96  111.  App.  639. 

Continuity. —  The  relation  of  common  carrier,  once  proved,  is  pre- 
sumed to  exist.  P.  &  P.  Union  Ry.  Co.  v.  V.  S.  Roll.  S.  Co.,  136  111. 
643,  654. 

Sanity. —  There  is  a  presumption  of  sanity.  Stevens  v.  Shanna- 
han,  160  111.  330;  Fisher  v.  People,  23  111.  283;  Hopps  v.  People,  31 
111.  385,  394;  Lilly  v.  Waggoner,  27  111.  395;  Titcomb  v.  Vantyle, 
84  111.  371;  Snow  v.  Benton,  28  111.  306. 

The  condition  of  mind  long  before  a  will  was  made  is  irrelevant. 
Dickie  v.  Carter,  42  111.  376. 

Every  one  free. —  That  every  one  is  free.  Rodney  v.  Illinois  Cent, 
R.  R.  Co.,  19  111.  42;  Bailey  v.  Cromwell,  3  Scam.  71;  Kinney  v. 
Cook,  3  Scam.  232. 

Conveyance  to  wife. —  There  is  presumption  that  a  conveyance  by 
husband  to  wife  is  by  way  of  gift.     Pool  v.  Phillips,  167  111.  432. 

Other  presumptions. —  Jackson  v.  Cummings,  15  111.  449;  Korah  v. 
Ottawa,  32  111.  121 ;  People  v.  Hatch,  33  111.  9  ;  R.,  R.  I.  &  St.  L.  R.  R. 
Co.  v.  Lewis,  58  111.  49;  Illinois  Cent.  R.  R.  Co.  v.  Eouck,  72  111. 
285;  C,  B.  &  Q.  R.  R.  Co.  v.  Van  Patten,  74  111.  91. 

That  one  intends  the  natural  results  of  his  acts. —  People  v. 
Sweeney,  55  Mich.  586;  Allison  v.  Chandler,  11  Mich.  542;  People 
v.  Potter,  5  Mich.  1 ;  People  v.  Scott,  6  Mich.  287 ;  People  v.  Getch- 
ell,  6  Mich.  497;  Schaible  v.  Ardner,  98  Mich.  70;  People  v.  Resh,. 
107  Mich.  251. 

New   Jersey. 

Presumption  of  regularity. —  Railroad  Co.  v.  Little,  41  N.  J.  Eq. 
519. 

Regularity  of  taking  a  deposition.  Neio  Jersey  Exp.  Co.  v.  Nichols? 
32  N.  J.  L.  166,  33  N.  J.  L.  434. 

Presumed  that  an  oath  was  administered  regularly.  Coxe  v. 
Field.  1  Green,  215:  Williamson  v.  Carroll,  1  Harr.  217. 

Judicial  proceedings. —  Judicial  proceeding  of  another  State  pre- 
sumed to  be  valid  and  regular.  Royal  Arcanum  v.  Carley,  52  N.  J. 
Eq.  642. 


€uap.  XIV.]  THE   LAW   OF  EVIDENCE.  50'J 

Presumption  is  that  a  judgment  was  entered  at  the  earliest  hour 
of  the  day  in  which  it  could  be  entered  in  due  course.  Hunt  v. 
tiwayze,  55  N.  J.  L.  33. 

In  rendering  a  decree  the  court  is  presumed  to  have  proceeded 
according  to  law,  and  the  burden  of  proof  is  on  the  impeaching 
party.  Eldridge  v.  Lippincott,  Coxe,  397 ;  Hyer  v.  Morehouse,  Spen. 
125. 

Presumption  that  an  attorney  has  authority  to  appear.  Xorris 
v.  Douglass,  2  South.  817;  Railroad  Co.  v.  Greenwich,  25  N.  J.  Eq. 
565;  Ward  v.  Price,  25  N.  J.  L.  225. 

Every  reasonable  presumption  is  in  favor  of  the  validity  of  an 
award.     Thomas  v.  W.  Jersey  R.  Co.,  24  N.  J.  Eq.  568. 

Regularity  of  the  proceedings  of  a  court  with  jurisdiction  is  pre 
sumed.  Maxwell  v.  Pittenger,  3  N.  J.  Eq.  156;  Van  Kleek  v.  O'Han- 
lon,  21  N.  J.  L.  582;   Reeves  v.  Townsend,  22  N".  J.  L.  396. 

Presumption  that  what  ought  to  be  done  has  been  done  does  not 
apply  in  case  of  persons  and  tribunals  having  limited  or  merely 
statutory  jurisdiction.     Snediker  v.  Quick,  13  N.  J.  L.  306. 

Presumptions  arising  from  lapse  of  time. —  Presumed  that  sur- 
veyors acted  with  ordinary  skill  and  care  when  oral  evidence  has 
become  impossible  by  lapse  of  time.     Scott  v.  Yard,  46  N.  J.  Eq.  79. 

Surveys  which  have  stood  upon  the  records  of  the  proprietors  for 
nearly  200  years  are  conclusively  presumed  to  have  been  approved 
by  the  proprietors.     Jennings  v.  Burnham,  56  N.  J.  L.  289. 

After  a  highway  has  been  used  for  a  long  time  the  presumption 
is  that  those  who  surveyed  it  acted  properly.  Taintor  v.  Morris- 
town,  33  N.  J.  L.  57;  Taintor  v.  Morristown,  19  N.  J.  Eq.  46;  Ward 
v.  Folly,  2  South.  482;  Bodine  v.  Trenton,  36  N.  J.  L.  198;  State  v. 
Lewis,  2  Zab.  564. 

Presumption  that  title  is  extinguished  when  no  entry  is  made  in 
twenty  years  does  not  exist  in  favor  of  one  who  never  himself  exer- 
cised any  dominion  over  the  property.  Roll  v.  Rea,  57  N.  J.  L. 
647. 

Mortgage  presumed  to  be  paid  after  a  lapse  of  twenty  years. 
Magee  v.  Bradley,  54  N.  J.  Eq.  326 ;  Stimis  v.  Stimis,  54  N\  ,T.  Eq. 
17. 

Presumption  after  twenty  years  that  a  legacy  has  been  paid. 
Magee  v.  Bradley,  54  N.  J.  Eq.  326. 

Presumption  13  that  tax  has  been  paid  after  a  lapse  of  twenty 
years.     In  re  Commissioners  of  Trenton,  17  N.  J.  L.  J.  23. 


510  A  DIGEST  OF  [Pabt  III. 

Maryland. 

The  proceedings  of  a  court  of  general  jurisdiction  are  presumed 
to  be  regular.  Schultze  v.  State,  43  Md.  295;  Hayes  v.  Brotzman, 
46  Md.  519. 

The  presumption  is  that  a  trustee  has  faithfully  performed  the 
trust.  Shilknecht  v.  Eastbum,  2  G.  &  J.  115. 

Pennsylvania. 

Regularity. —  Hurray's  Heirs  v.  Erie,  59  Pa.  223. 

If  a  court  has  jurisdiction  the  regularity  of  its  proceedings  is 
presumed.  Ohio  v.  Hinchman,  27  Pa.  479;  Iddings  v.  Cairns,  2 
Grant,  88. 

Presumed  that  an  order  staying  an  execution  was  properly 
granted.     Cake  v.  Cake,  192  Pa.  550. 

It  is  presumed  that  officers  act  in  accordance  with  duty  and 
within  the  scope  of  their  authority  only  when  they  act  as  such 
officers.     Murphy  v.  Chase,  103  Pa.  260. 

Presumption  of  payment  when  note  has  come  into  hands  of  tli£ 
maker.     Connelly  v.  McKean,  64  Pa.  113. 

The  report  of  public  officers  appointed  to  appraise  and  survey 
lands  is  prima  facie  evidence  of  the  regularity  of  their  proceedings, 
even  though  the  report  is  not  as  complete  as  it  should  be.  Alle- 
gheny v.  Nelson,  25  Pa.  332. 

Aeticle  102.* 

estoppel,  by  conduct. 

When  one  person  by  anything  which  he  does  or  says,  or 
abstains  from  doing  or  saying,  intentionally  causes  or  per- 
mits another  person  to  believe  a  thing  to  be  true,  and  to  act 
upon  such  belief  otherwise  than  but  for  that  belief  he  would 
have  acted,  neither  the  person  first  mentioned  nor  his  rep- 
resentative in  interest  is  allowed,  in  any  suit  or  proceeding 

*  See  Note  XXXVIII. 


Chap.  XIV.]  THE   LAW   OF  EVIDENCE.  511 

between  himself  and  such  person  or  his  representative  in 
interest,  to  deny  the  truth  of  that  thing. 

When  any  person  under  a  legal  duty  to  any  other  person 
to  conduct  himself  with  reasonable  caution  in  the  transac- 
tion of  any  business  neglects  that  duty,  and  when  the  person 
to  whom  the  duty  is  owing  alters  his  position  for  the  worse 
because  he  is  misled  as  to  the  conduct  of  the  negligent  per- 
son by  a  fraud,  of  which  such  neglect  is  in  the  natural 
course  of  things  the  proximate  cause,  the  negligent  person 
is  not  permitted  to  deny  that  he  acted  in  the  manner  in 
which  the  other  person  was  led  by  such  fraud  to  believe  him 

to  act. 

Illustrations. 

(a)  A,  the  owner  of  machinery  in  B's  possession,  which  is  taken  in 
execution  by  C,  abstains  from  claiming  it  for  some  months,  and  con- 
verses with  C's  attorney  without  referring  to  his  claim,  and  by  these 
means  impresses  C  with  the  belief  that  the  machinery  is  B's.  C  sells 
the  machinery.    A  is  estopped  from  denying  that  it  is  B's.12 

(6)  A,  a  retiring  partner  of  B,  gives  no  notice  to  the  customers  of  the 
firm  that  he  is  no  longer  B's  partner.  In  an  action  by  a  customer,  he 
cannot  deny  that  he  is  B's  partner.13 

(c)  A  sues  B  for  a  wrongful  imprisonment.  The  imprisonment  wa9 
wrongful,  if  B  had  a  certain  original  warrant;  rightful,  if  he  had  only 
a  copy.  B  had  in  fact  a  copy.  He  led  A  to  believe  that  he  had  the 
original,  though  not  with  the  intention  that  A  should  act  otherwise 
than  he  actually  did.  B  may  show  that  he  had  only  a  copy  and  not  the 
original. 14 

(d)  A  sells  eighty  quarters  of  barley  to  B,  but  does  not  specifically 
appropriate  to  B  any  quarters.  B  sells  sixty  of  the  eighty  quarters  to 
C.  C  informs  A,  who  assents  to  the  transfer.  C  being  satisfied  with 
this,  says  nothing  further  to  B  as  to  delivery.  B  becomes  bankrupt. 
A  cannot,  in  an  action  by  C  to  recover  the  barley,  deny  that  he  holds 

MPickard  v.  Sears,  1837,  6  A.  &  E.  469,  474. 

13  (Per  Parke,  B.)  Freeman  v.  Cooke,  1848,  2  Ex.  663. 

n  Howard  v.  Hudson,  1853,  2  E.  &  B.  1. 


512  A  DIGEST  OF  [PabtIII. 

for  C  on  the  ground  that,  for  want  of  specific  appropriation,  no  prop- 
erty passed  to  B.15 

(e)  A  signs  blank  cheques  and  gives  them  to  his  wife  to  fill  up  as  she 
wants  money.  A's  wife  fills  up  a  cheque  for  £50  2s.  so  carelessly  that 
room  is  left  for  the  insertion  of  figures  before  the  50  and  for  the  inser- 
tion of  words  before  the  "  fifty."  She  then  gives  it  to  a  clerk  of  A's  to 
get  it  cashed.  He  wrote  3  before  50  and  "  three  hundred  and  "  before 
"  fifty."  A's  banker  pays  the  cheque  so  altered  in  good  faith.  A 
cannot  recover  against  the  banker.it> 

(f)  A  railway  company  negligently  issues  two  delivery  orders  for 
the  same  wheat  to  A,  who  fraudulently  raises  money  from  B  as  upon 
two  consignments  of  different  lots  of  wheat.  The  Railway  is  liable  to 
B  for  the  amount  which  A  fraudulently  obtained  by  the  company's 
negligence.17 

(g)  A  carelessly  leaves  his  door  unlocked,  whereby  his  goods  are 
stolen.  He  is  not  estopped  from  denying  the  title  of  an  innocent 
purchaser  from  the  thief.18 

AMERICAN  NOTE. 
General. 

Authorities. —  Bigelow  on  Estoppel,  sec.  453  et  seq.;  11  Am.  & 
Eng.  Encyclopaedia  of  Law  ( 2d  ed. ) ,  p.  420  et  seq. 

Estoppel. —  First  paragraph  of  text.  Dickerson  v.  Colgrove,  100 
U.  S.  578;  Mutual  Life  Ins.  Co.  v.  Norris,  31  N.  J.  Eq.  583;  Slocumb 
v.  Railroad  Co.,  57  la.  675;  Stevens  v.  Ludlum,  40  Minn.  168;  Bates 
v.  Swiger,  40  W.  Va.  421;  Putnam  v.  Tyler,  117  Pa.  570;  Fletcher 
v.  Pullen,  70  Md.  205;  Backus  v.  Taylor,  84  Ind.  503;  Drew  v.  Kim- 
ball, 43  N.  H.  282,  80  Am.  Dec.  163;  Horn  v.  Cole,  51  N.  H.  287; 
Forsyth  v.  Day,  46  Me.  176;  Wetherell  v.  Mar.  Ins.  Co.,  49  Me.  200; 
Allen  v.  Shaic,  61  N.  H.  95;  Canfield  v.  Gregory,  66  Conn.  9,  17; 
Chase's  Appeal,  57  Conn.  236;  Roe  v.  Jerome,  18  Conn.  153;  Taylor 

is  Knights  v.  Wiffen,  1870,  L.  R.  5  Q.  B.  660. 

16  Young  v.  Groate,  1827,  4  Bing.  253. 

17  Coventry  v.  G.  E.  R.,  1883,  11  Q.  B.  D.  776. 

18  Per  Blackburn,  J.,  in  Swan  v.  Ar.  B.  Australasian  Co.,  1863, 
2  H.  &  C.  181.  See  Baxendale  v.  Bennett.  1878.  3  Q.  B.  D.  525.  The 
earlier  cases  on  the  subject  are  much  discussed  in  Jorden  v.  Money, 
1854,  5  H.  L.  Ca.  209-16,  249-257. 


Chap.  XIV.]  THE   LAW   OF   EVIDENCE.  513 

v.  Ely,  25  Conn.  258;  Mitchell  v.  Leavitt,  30  Conn.  590;  Carroll  v. 
M.  R.  It.  Co.,  Ill  Mass.  1;  Zuchtman  v.  Roberts,  109  Mass.  53,  54, 
12  Am.  Eep.  663;  Jackson  v.  Allen,  120  Mass.  64;  Fall  River  Dank 
v.  Duffinton,  97  Mass.  500. 

Fraud. —  Last  paragraph  of  text.  Ruddell  v.  Fhalor,  72  Ind.  533; 
Ross  v.  Doland,  29  O.  St.  473;  Shirts  v.  Over  John,  60  Mo.  305.  Com- 
pare Leather  Mfrs.  Dank  v.  Holley,  117  U.  S.  96;  O'Mulcahy  v.  HoZ- 
Jey,  21  Minn.  31 ;  Putnam  v.  Sullivan,  4  Mass.  45,  53,  3  Am.  Dec.  206. 

Last  paragraph  of  text. —  Ross  v.  Doland,  29  Ohio  St.  473. 

New   Jersey. 

Estoppel. —  First  paragraph  of  text.  Mutual  Life  Ins.  Co.  v.  Nor- 
ris,  31  N.  J.  Eq.  583. 

One  erected  a  house  on  land  of  another  who  stood  by  and  was 
silent.  No  estoppel  if  the  silence  was  due  to  mistake.  McKelway 
v.  Armour,  10  N.  J.  Eq.  115. 

Instances. —  Dank  v.  Fulmer,  31  N.  J.  L.  52;  Den.  V.  Daldwin,  1 
Zab.  395;  Dewees  v.  Insurance  Co.,  35  N.  J.  L.  366;  Erie  R.  Co.  v.  D., 
L.  &  W.  R.  Co.,  21  N.  J.  Eq.  283;  Atty.-Gen.  v.  Railroad  Co.,  24  N.  J. 
Eq.  50. 

Estoppel  in  pais  defined. —  Church  v.  Iron  Works,  45  N.  J.  L.  133. 

Maryland. 

Authorities  in  general. —  Early  v.  Dank,  51  Md.  562;  Homer  v. 
Grosholz,  38  Md.  520;  Bramble  v.  State,  41  Md.  435;  McClellan  t. 
Kennedy,  8  Md.  230;  Hambleton  v.  Railroad  Co.,  44  Md.  551; 
Browne  v.  Church,  37  Md.  108;  Andrews  v.  CZarfc,  72  Md.  396; 
Fletcher  v.  Pullen,  70  Md.  205. 

Facts  constituting  an  estoppel  in  pais  are  admissible  without 
being  specially  pleaded.     Babylon  v.  Duttera,  89  Md.  444. 

Estoppel,  what  is.     Alexander  v.  Walker,  8  Gill,  239. 

When  the  law  raises  a  conclusive  presumption  as  to  one's  inten- 
tion from  the  acts  themselves,  no  evidence  as  to  such  intention  is 
admissible.     Lineiceaver  v.   Slagle,  64  Md.   465. 

Estoppels  must  be  mutual.     Groshon  v.  Thomas,  20  Md.  234. 

Illustration  (e). —  Rule  contra.    Burrows  v.  Klunk,  70  Md.  451. 

33 


514  A  DIGEST  OF  [PabtIII. 


Pennsylvania. 

Estoppel  by  conduct. —  Illustrations.  Sargent  v.  Johns,  206  Pa. 
386;  Putnam  v.  Tyler,  117  Pa.  570. 

Receipt  in  full  as  an  estoppel.     Ebert  v.  Johns,  206  Pa.  395. 

A  receipt  may  operate  as  an  estoppel  as  against  third  parties 
acting  in  reliance  upon  such  receipt  to  their  injury.  Atkins  v. 
Payne,  190  Pa.  5. 

No  estoppel  from  failure  to  proclaim  a  forgery  immediately  on 
discovery.     Zell's  Appeal,  103  Pa.  344. 

Illustration  (e). —  Question  of  negligence  left  to  the  jury.  Leas  v. 
Walls,  101  Pa.  57. 

Article  103. 

estoppel  of  tenant  and  licensee. 

~No  tenant  and  no  person  claiming  through  any  tenant  of 
any  land  or  hereditament  of  which  he  has  been  let  into 
possession,  or  for  which  he  has  paid  rent,  is,  till  he  has 
given  up  possession,  permitted  to  deny  that  the  landlord 
had,  at  the  time  when  the  tenant  was  let  into  possession 
or  paid  the  rent,  a  title  to  such  land  or  hereditament  ;19  and 
no  person  who  came  upon  any  land  by  the  licence  of  the 
person  in  possession  thereof,  is,  whilst  he  remains  on  it, 
permitted  to  deny  that  such  person  had  a  title  to  such  pos- 
session at  the  time  when  such  licence  was  given.20 

AMERICAN  NOTE. 

General. 

Authorities. —  18  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p. 
411  et  seq.;  vol.  11,  p.  440  et  seq.;  1  Washburn  on  Real  Property 
(5th  ed.),  pp.  588-601. 

19  Doe  v.  Barton,  1840,  11  A.  &  E.  307;  Doe  v.  Smyth,  1815,  4  M.  & 
S.  347;  Doe  v.  Pegg,  1785,  1  T.  R.  760  (note). 

20  Doe  v.  Baytup,  1835,  3  A.  &  E.  188. 


Chap.  XIV.]  THE   LAW   OF  EVIDENCE.  515 

Tenant.—  Scott  v.  Rutherford,  92  U.  S.  107;  Sexton  v.  Carley,  147 
111.  269.  But  see  Corrigan  v.  Chicago,  144  111.  537;  Derrick  v.  Luddy, 
64  Vt.  462 ;  Camp  v.  Camp,  5  Conn.  300 ;  Magill  v.  Hinsdale,  6  Conn. 
469;  Holmes  v.  Kennedy,  1  Root  (Conn.),  77;  Streeter  v.  Ilsley,  147 
Mass.  141;  Co66  v.  Arnold,  8  Mete.  (Mass.)  398;  Bailey  v.  Kilburn, 
10  Mete.  (Mass.)  176;  OaA;es  v.  Munroe,  8  Cush.  (Mass.)  282;  MiZ- 
Jer  v.  Lana,  99  Mass.  13;  Homes  v.  Shaw,  100  Mass.  187;  Coburn  v. 
Palmer,  8  Cush.  (Mass.)  124;  B/afce  v.  Sanderson,  1  Gray  (Mass.), 
332;  Patten  v.  Deshon,  1  Gray  (Mass.),  325;  Dunshee  v.  Grundy, 
15  Gray  (Mass.),  314;  Granger  v.  Parker,  137  Mass.  228. 

A  tenant  may  dispute  his  lessor's  title,  if  he  has  yielded  the  pos- 
session in  good  faith,  though  without  process  of  law,  to  one  who 
had  actu  My  entered  under  a  paramount  title,  coupled  with  a  present 
right  of  entry.     Camp  v.  Scott,  47  Conn.  369. 

A  lessee,  who  holds  over  after  the  end  of  the  term,  is  estopped 
from  setting  up  against  the  lessor  that  the  title  is  in  a  stranger. 
Holmes  v.  Kennedy,  1  Root,  77. 

Licensee. —  Hamilton,  etc.,  R.  Co.  v.  R.  R.  Co.,  29  O.  St.  341 ;  Hoen 
v.  Simmons,  1  Cal.  719,  52  Am.  Dec.  290;  Glynn  v.  George,  20  N.  H. 
114. 

The  estoppel  may  be  claimed  by  any  person  deriving  title  from  the 
landlord.  People  v.  Angel,  61  How.  Fr.  159;  Goodnow  v.  Pope,  31 
Misc.  Rep.  475. 

New   Jersey. 

Estoppel  of  tenant  to  deny  landlord's  title.  Horner  v.  Leeds,  25 
N.  J.  L.   106. 

Maryland. 

A  tenant  is  estopped  from  denying  his  landlord's  title.  Goodsell 
v.  Lawson,  42  Md.  348;  Cook  v.  Cresswell,  44  Md.  581;  Isaac  v. 
Clarke,  2  Gill,   1. 

If  plaintiff  claims  title  under  the  same  person  as  the  defendant 
does,  he  need  not  show  that  person's  title  as  the  defendant  i^ 
estopped  to  dispute  it.     Ehcood  v.  Lannon,  27  Md.  200. 

But  a  tenant  may  show  that  the  landlord's  estate  has  been  sold 
for  taxes.     Keys  v.  Forrest,  90  Md.   132. 

A  tenant  may  show  that  his  landlord's  title  has  expired  since  the 
lease.     Presstman  v.  Silljacks,  52  Md.  647. 


516  A  DIGEST  OF  [Part  III. 

Pennsylvania. 

Authority:     Eunkle  v.  Gas  Co.,  165  Pa.  133. 

A  tenant  may  show  that  one  of  the  persons  who  signed  the  lease 
as  landlord  is  not  actually  the  landlord  and  did  not  sign  as  such. 
Swint  v.  Oil  Co.,  184  Pa.  202. 


Article  104. 

estoppel,  of  acceptor  of  bile  of  exchange. 

~No  acceptor  of  a  bill  of  exchange  is  permitted  to  deny 
the  signature  of  the  drawer  or  his  capacity  to  draw,  or  if 
the  bill  is  payable  to  the  order  of  the  drawer,  his  capacity 
to  endorse  the  bill,  though  he  may  deny  the  fact  of  the  en- 
dorsement;21 nor  if  the  bill  be  drawn  by  procuration,  the 
authority  of  the  agent,  by  whom  it  purports  to  be  drawn, 
to  draw  in  the  name  of  the  principal,22  though  he  may 
deny  his  authority  to  endorse  it.23  If  the  bill  is  accepted 
in  blank,  the  acceptor  may  not  deny  the  fact  that  the 
drawer  endorsed  it.24 

AMERICAN  NOTE. 

Authorities. —  2  Greenleaf  on  Evidence  (2d  ed.),  sees.  164,  165; 
4  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p.  65  et  seq.;  Hoffman 
v.  Bank  of  Milwaukee,  12  Wall.  181;  U.  8.  Bank  v.  Bank  of  Georgia, 
10  Wheat.  333,  353;  Rational  Bank  v.  Bangs,  106  Mass.  441;  Marine 
Nat.  Bank  V.  Nat.  City  Bank,  59  N.  Y.  67;  Nat.  Park  Jank  v.  Ninth 
Nat.  Bank,  4t>  X.  Y.  77.  70  Am.  Rep.  310;  Crawford's  Negotiable  In- 
struments Law,  sec.  112,  p.  52. 

21  Garland  v.  Jacomb,  1873.  L.  P.  8  Ex.  216. 

22  Sanderson  v.  Collman,  1842.  4  M.  &  G.  209. 

23  Robinson  v.  Yarrow,  1817,  7  Tau.  455. 

24  L.  &  S.  W.  Bank  v.  Went  worth,  1880,  5  Ex.  D.  96. 


Chap.  XIV.]  TEE   LAW   OF  EVIDENCE.  517 

New   Jersey. 
The  acceptor  cannot  deny  that  due  diligence  was  used  in  present- 
ing it.     Middlesex  v.  Thomas,  20  N.  J.  Eq.  39. 

Maryland. 

The  acceptor  conclusively  admits  the  signature  of  the  drawer, 
Dut  not  the  indorsement  of  the  payee,  even  though  the  bill  be  to  the 
drawer's  own  order.     Williams  v.  Drexel,  14  Md.  566. 

The  acceptor  is  estopped  to  deny,  as  against  the  payee,  that  he 
has  funds  of  the  drawer  in  his  hands.  Laflin  v.  Sinsheimer,  4S  Md. 
411. 

Pennsylvania. 

The  indorser  of  a  negotiable  instrument  cannot  be  a  witness  to 
invalidate  it.    John's  Admr.  v.  Pardee,  109  Pa.  545. 

Article    105. 
estoppel  of  bailee,  agent,  and  licensee. 

No  bailee,  agent,  or  licensee  is  permitted  to  deny  that 
the  bailor,  principal,  or  licensor,  by  whom  any  goods  were 
entrusted  to  any  of  them  respectively  was  entitled  to  those 
goods  at  the  time  when  they  were  so  entrusted. 

Provided  that  any  such  bailee,  agent,  or  licensee  may 
show  that  he  was  compelled  to  deliver  up  any  such  goods 
to  some  person  who  had  a  right  to  them  as  against  his 
bailor,  principal,  or  licensor,  or  that  his  bailor,  principal, 
or  licensor,  wrongfully  and  without  notice  to  the  bailee, 
agent,  or  licensee,  obtained  the  goods  from  a  third  person 
who   has  claimed  them  from  such  bailee,   agent,   or  li- 


25  Dixon  v.  Hammond,  1819,  2  B.  &  A.  310;  Crossley  v.  Dixon, 
1863,  10  H.  L.  C.  293;  Gosling  v.  Birnie,  1831.  7  Bing.  339; 
Hardman  v.  Wilcock,  1832  (?),  9  Bing.  382  (n.)  ;  Biddle  v.  Bondy 
1865,  34  L.  J.  Q.  B.  137;  Wilson  v.  Anderton,  1830,  1  B.  &  Ad.  450. 
As  to  carriers,  see  Sheridan  v.  New  Quay,  1858,  4  C.  B.  (N.  S.)  618. 


518  A  DIGEST  OF  [PabtIII. 

Every  bill  of  lading  in  the  hands  of  a  consignee  or  en- 
dorsee for  valuable  consideration,  representing  goods  to 
have  been  shipped  on  board  a  vessel,  is  conclusive  proof  of 
that  shipment  as  against  the  master  or  other  person  sign- 
ing the  same,  notwithstanding  that  some  goods  or  some 
part  thereof  may  not  have  been  so  shipped,  unless  such 
holder  of  the  bill  of  lading  had  actual  notice  at  the  time  of 
receiving  the  same  that  the  goods  had  not  been  in  fact 
laden  on  board,  provided  that  the  master  or  other  person  so 
signing  may  exonerate  himself  in  respect  of  such  misrepre- 
sentation by  showing  that  it  was  caused  without  any  de- 
fault on  his  part,  and  wholly  by  the  fraud  of  the  shipper 
or  of  the  holder  or  some  person  under  whom  the  holder 
holds.26 

AMERICAN  NOTE. 

Authorities. —  4  Am.  &  Eng.  Encyclopaedia  of  Law  (2d  ed.),  p. 
531  et  seq.;  vol.  3,  p.  758  et  seq.;  vol.  1,  p.  1091  et  seq. 

Bailee,  etc. —  First  paragraph  of  text.  Bricker  v.  Stroud,  56  Mo. 
App.  183;  The  Idaho,  93  U.  S.  575;  King  v.  Richards,  6  Whart.  418; 
Pulliam  v.  Burlingame,  81  Mo.  Ill,  51  Am.  Rep.  229;  Roberts  v. 
Noyes,  76  Me.  590;  Singer  Mfg.  Co.  v.  King,  14  R.  I.  511;  Burton 
v.  Wilkinson,  18  Vt.  186,  46  Am.  Dec.  145;  Staples  v.  Fillmore,  43 
Conn.  510;  Osgood  v.  Nichols,  5  Gray  (Mass.),  420;  Bursley  v.  Ham- 
ilton, 15  Pick.   (Mass.)   40,  25  Am.  Dec.  423. 

Bill  of  lading. — Last  paragraph  of  text.  Relyea  v.  New  Haven 
Rolling  Mill  Co.,  75  Fed.  Rep.  420 ;  Brooke  v.  N.  Y.,  etc.,  R.  Co.,  108 
Pa.  529;  Sioux  City,  etc.,  R.  Co.  v.  First  Nat.  Bank,  10  Neb.  556; 
Sears  v.  Wingate,  3  Allen  (Mass.),  103.  But  see  Pollard  v.  Vinton, 
105  U.  S.  7;  Bait.  &  O.  R.  Co.  v.  Wilkens,  44  Md.  11;  Dean  v.  King, 
22  O.  St.  118;  Nat.  Bank  of  Commerce  v.  Chicago,  etc.,  R.  Co.,  44 
Minn.  224. 

26  18  &  19  Vict.  c.  Ill,  s.  3. 


Chap.  XIV.]  THE   LAW   OF  EVIDENCE.  519 

New   Jersey. 
Bill  of  lading. —  The  receipt  of  a  common  carrier  i3  not  conclusive 
proof  of  quantity  or  condition  of  the  goods  in  favor  of  either  con- 
signor or  consignee.     Aip-es  v.  Railroad  Co.,  29  N.  J.  L.  397. 

Maryland. 

Bill  of  lading. —  Last  paragraph  of  text.    See  B.  &  0.  R.  Co.  v.  Wil- 
kens,  44  Md.   11. 

Pennsylvania. 

Shipowner  is  estopped  if  the  master  acts  within  apparent  author- 
ity.    Brooke  v.  Railroad  Co.,  108  Pa.  529. 


52Q  A  DIGEST  OF  [Pabt  III. 


CHAPTER  XV. 

OF  THE  COMPETENCY  OF  WITNESSES.* 

Article  106. 

who  may  testify. 

All  persons  are  competent  to  testify  in  all  cases  except  as 
hereinafter  excepted. 

AMERICAN   NOTE. 

General. 

Competency  is  presumed.     Campbell  v.  Campbell,  130  111.  466,  473. 

The  statute  on  evidence  does  not  render  incompetent  any  person 
before  competent.    M'Xay  v.  Riley,  135  111.  589. 

Credible  witnesses  to  a  will  are  competent  witnesses.  In  re 
Noble's  Estate,  22  111.  App.  535;  In  re  Will,  etc.,  124  111.  269. 

All  witnesses  are  competent  unless  rendered  incompetent  by  stat- 
ute, under  section  504,  Rev.  Stat.,  1894.  Jordon  v.  State,  142  Ind. 
422. 

A  person  of  sufficient  age  is  presumed  to  be  a  competent  witness. 
Duncan  v.  Welty,  20  Ind.  44. 

Presumed  competent. —  A  witness  is  presumed  to  be  competent 
until  the  contrary  is  shown.     Norris  v.  Hurd,  Wright,  102. 

Article  107. t 

WHAT    WITNESSES    ARE    INCOMPETENT. 

A  witness  is  incompetent  if  in  the  opinion  of  the  judge 
he  is  prevented  by  extreme  youth,  disease  affecting  his 
mind,  or  any  other  cause  of  the  same  kind,  from  recollect- 
ing the  matter  on  which  he  is  to  testify,  from  nnderstand- 

*  See  Note  XXXIX. 

f  See  Note  XL.  A  witness  under  sentence  of  death  was  said  to  be 
incompetent  in  R.  v.  Webb,  1867,  11  Cox,  133,  sed  quaere. 


Chap.  XV.]  TUB  LAW  OF  EVIDENCE.  521 

ing  the  questions  put  to  him,  from  giving  rational  answers 
to  those  questions,  or  from  knowing  that  he  ought  to 
speak  the  truth. 

A  witness  unable  to  speak  or  hear  is  not  incompetent, 
but  may  give  his  evidence  by  writing  or  by  signs,  or  in 
any  other  manner  in  which  he  can  make  it  intelligible ;  but 
such  writing  must  be  written  and  such  signs  made  in  open 
Court.     Evidence  so  given  is  deemed  to  be  oral  evidence. 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Wharton  on  Evidence,  sees.  398-403,  406,  407;  1 
Greenleaf  on  Evidence   (15th  ed. ),  sees.  365-370. 

Youth,  etc. —  First  paragraph  of  text.  State  v.  Whit  tier,  21 
Me.  341,  347,  38  Am.  Dec.  272;  Day  v.  Day,  56  N.  H.  316;  Com.  V. 
Hutchinson,  10  Mass.  225;  Com.  v.  Robinson,  165  Mass.  426;  State 
v.  Levy,  23  Minn.  104;  State  v.  Doyle,  107  Mo.  36;  State  v.  Douglas, 
53  Kan.  669;  McGuff  v.  State,  88  Ala.  147. 

A  child  of  five  may  be  allowed  to  testify.  Com.  v.  Robinson,  165 
Mass.  426.  See  also  Wheeler  v.  U.  S.,  159  U.  S.  523;  State  v.  Juneau, 
88  Wis.  180;  McGuire  v.  People,  44  Mich.  2S6  (child  of  six). 

Unsound  mind. —  Kendall  v.  May,  10  Allen  (Mass.),  59;  Com.  t. 
Lynes,  142  Mass.  577;  Lewis  v.  Eagle  Ins.  Co.,  10  Gray  (Mass.), 
508. 

The  question  whether  a  person  offered  as  a  witness  is  insane  goes 
to  his  competency,  and  is  a  preliminary  question  to  be  decided  by 
the  court.    Holcomb  v.  Holcomb,  28  Conn.  179. 

Persons  of  unsound  mind  may  testify  if,  in  fact,  their  under- 
standing is  sufficient  to  enable  them  to  understand  the  oath  and  the 
questions.  Pease  v.  Burroioes,  86  Me.  153,  176;  Dist.  of  Columbia 
v.  Annes,  107  U.  S.  519;  Tucker  v.  Shaw,  158  111.  326;  Bowdle  v. 
Railway  Co.,  103  Mich.  272;  Cannaday  v.  Lynch,  27  Minn.  435; 
Worthington  v.  Mencer,  96  Ala.  310. 

Interest. —  The  common-law  disqualification  because  of  interest  ia 
now  removed,  so  far  as  the  United  States  courts  are  concerned. 
U.  S.  Stat,  at  Large,  vol.  20,  p.  30 ;  U.  S.  Rev.  Stats.,  sec.  858. 


522  A  DIGEST  OF  [Part  III. 

In  the  various  States,  the  common-law  disqualification  because  of 
interest  is  generally  removed  by  statute,  but  the  fact  of  interest  may 
be  shown  (e.  g.,  Conn.  Gen.  Stats.,  sec.  1098). 

Atheist. —  At  common  law,  one  who  does  not  believe  in  God  is  an 
incompetent  witness.  Free  v.  Buckingham,  59  N.  H.  219;  Arnd  v. 
Amling,  53  Md.  192;  Clinton  v.  State,  33  0.  St.  27 ;  Hunscom  v.  Huns- 
com,  15  Mass.  184. 

The  opinions  of  one  offered  as  a  witness,  as  to  the  existence  of  a 
God  and  future  accountability,  must  be  derived  from  other  wit- 
nesses, and  he  cannot  himself  be  questioned  upon  them.  Atwood  v. 
Welton,  7  Conn.  73. 

They  may  be  proved  from  his  declarations  out  of  court.  Curtisa 
v.  Strong,  4  Day   (Conn.),  56;  Boio  v.  Parsons,  1  Root  (Conn.),  481. 

An  atheist  is  now,  by  statute  generally,  a  competent  witness,  but 
the  fact  may  be  shown  (e.  g.,  Conn.  Gen.  Stats.,  sec.  1098;  Mass.  Pub. 
Stats.,  chap.  169,  sec.  17).  See  Eronek  v.  People,  134  111.  139;  Peo- 
ple v.  Cop.ey,  71  Cal.  548;   Bush  v.  Com.,  80  Ky.  244. 

Deaf  and  dumb  witness. —  Quinn  v.  Halbert,  57  Vt.  178;  State  v. 
De  Wolf,  8  Conn.  93,  97. 

Conviction  of  crime. —  Conviction  of  crime  does  not  render  a  per- 
son incompetent  as  a  witness,  although  it  may  be  shown  to  affect 
credibility.  Code  Civ.  Pro.,  sec.  832.  Sims  v.  Sims,  75  N.  Y.  466; 
People  v.  O'Xeil,  109  N.  Y.  251.  And  this  even  though  the  crime  is 
not  an  infamous  one.    People  v.  Burns,  33  Hun,  296. 

Accomplice. —  An  accomplice  may  testify  against  a  prisoner. 
Love  v.  People,  160  111.  501. 

Detectives. —  The  testimony  of  a  private  detective  is  to  be  re- 
garded with  suspicion.  Blake  v.  Blake,  70  111.  618.  Compare  De- 
Long  v.  Giles,  11  Brad.  33. 

Bias. —  It  is  competent  to  prove  a  witness's  bias  and  sympathy. 
Elgin  v.  Eaton,  2  Brad.  90. 

No  party  to  any  civil  action,  suit,  or  proceeding,  or  person  di- 
rectly interested  in  the  event  thereof,  shall  be  allowed  to  testify 
therein  of  his  own  motion,  or  in  his  own  behalf,  by  virtue  of  the 
foregoing  section,  (removing  disqualification  because  of  interest) 
when  any  adverse  party  sues  or  defends  as  the  trustee  or  conservator 
of  any  idiot,  habitual  drunkard,  lunatic,  or  distracted  person,  or  as 
the  executor,  administrator,  heir,  legatee  or  devisee  of  any  deceased 
person,   or   as   guardian    or   trustee    of   any   such    heir,    legatee   or 


€hap.  XV.]  THE  LAW  OF  EVIDENCE.  523 

devisee,  unless  when  called  as  a  witness  by  such  adverse  party  so 
suing  or  defending,  and  also  except  in  the  following  cases,  namely : 

First.  In  any  action,  suit  or  proceeding,  a  party  or  interested 
person  may  testify  to  facts  occurring  after  the  death  of  such  de- 
ceased person,  or  after  the  ward,  heir,  legatee  or  devisee  shall  have 
attained  his  or  her  majority. 

Second.  When,  in  such  action,  suit  or  proceeding,  any  agent  of 
any  deceased  person  shall,  in  behalf  of  any  person  or  persons  suing 
or  being  sued,  in  either  of  the  capacities  above  named,  testify  to 
any  conversation  or  transaction  between  such  agent  and  the  opposite 
party  or  party  in  interest,  such  opposite  party  or  party  in  interest 
may  testify  concerning  the  same  conversation  or   transaction. 

Third.  Where,  in  any  such  action,  suit  or  proceeding,  any  such 
party  suing  or  defending,  as  aforesaid,  or  any  persons  having  a  direct 
interest  in  the  event  of  such  action,  suit  or  proceeding,  shall  testify 
in  behalf  of  such  party  so  suing  or  defending,  to  any  conversation  or 
transaction  with  the  opposite  party  or  party  in  interest,  then  such 
opposite  party  or  party  in  interest,  shall  also  be  permitted  to  testify 
as  to  the  same  conversation  or  transaction. 

Fourth.  Where,  in  any  such  action,  suit  or  proceeding,  any  wit- 
ness, not  a  party  to  the  record,  or  not  a  party  in  interest,  or  not  an 
agent  of  such  deceased  person,  shall,  in  behalf  of  any  party  to  such 
action,  suit  or  proceeding,  testify  to  any  conversation  or  admission 
by  any  adverse  party  or  party  in  interest,  occurring  before  the  death 
and  in  the  absence  of  such  deceased  person,  such  adverse  party  or 
party  in  interest  may  also  testify  as  to  the  same  admission  or 
conversation. 

Fifth.  When,  in  any  such  action,  suit  or  proceeding,  the  deposition 
of  such  deceased  person  shall  be  read  in  evidence  at  the  trial,  any 
adverse  party  or  party  in  interest  may  testify  as  to  all  matters 
and  things  testified  to  in  such  deposition  by  such  deceased  person, 
and  not  excluded  for  irrelevancy  or  incompetency.  Hurds'  Rev. 
Stat.,  chap.  51,  sec.  2,  p.  858. 

As  to  section  2  of  the  evidence  act,  regarding  competency,  see 
Laurence  v.  Laurence,  164  111.  367. 

Under  certain  circumstances,  the  defendant  may  be  called  as  a 
witness  by  the  plaintiff  under  a  bill  of  discovery.  Hair  Co.  v. 
Daily,  161  111.  379. 

In  any  action,  suit  or  proceeding  by  or  against  any  surviving 
partner  or  partners,  joint  contractor  or  joint  contractors,  no  ad- 
verse party  or  person  adversely  interested  in  the  event  thereof,  shall, 


524  A  DIGEST  OF  [Part  III. 

by  virtue  of  section  1  of  this  act  (removing  disqualifications  because 
of  interest)  be  rendered  a  competent  witness  to  testify  to  any  ad- 
mission or  conversation  by  any  deceased  partner  or  joint  contractor, 
unless  some  one  or  more  of  the  surviving  partners  or  joint  con- 
tractors were  also  present  at  the  time  of  such  admission  or  con- 
versation; and  in  every  action,  suit  or  proceeding  a  party  to  the 
same  who  has  contracted  with  an  agent  of  the  adverse  party  —  the 
agent  having  since  died  —  shall  not  be  a  competent  witness  as  to 
any  admission  or  conversation  between  himself  and  such  <igent,  un- 
less such  admission  or  conversation  with  the  said  deceased  agent 
was  had  or  made  in  the  presence  of  a  surviving  agent  or  agents  of 
such  adverse  party,  and  then  only  except  where  the  conditions  are 
such  that  under  the  provisions  of  sections  2  and  3  of  this  act  he 
would  have  been  permitted  to  testify  if  the  deceased  person  had 
been  a  principal  and  not  an  agent.  Hurd's  Rev.  Stat.,  chap.  51, 
sec.  4,  p.  859. 

The  parties  to  bastardy  proceedings  may  testify  in  Illinois.  See 
Hurd's  Rev.  Stat,,  chap.  17,  sec.  6,  p.  204. 

The  adverse  party  may  be  compelled  to  testify  in  the  same  State. 
Hurd's  Rev.  Stat.,  chap.  51,  sec.  6,  p.  860. 

If  a  party  desires  the  testimony  of  the  adverse  party,  he  must 
subpoena  him.     Vennum  v.   Vennum,  56  111.  430. 

A  party  in  interest  may  be  compelled  to  testify  against  himself. 
Brooks  v.  McKinney,  4  Scam.  309. 

One  named  as  a  party  defendant  is  not  necessarily  an  adverse 
party  to  the  plaintiff.     197  111.  298,  301,  64  N.  E.  324. 

Party  as  witness  in  will  contest.     197  111.  298,  301,  64  N.  E.  324. 

The  habits  of  a  party  are  admissible  on  questions  of  negligence. 
Swift  v.  Zencick,  88  111.  App.  558. 

One  cannot  testify  in  his  own  behalf  when  the  adverse  party  de- 
fends as  executor.     Johnson  v.  Cunningham,  56  111.  App.  593. 

The  common-law  disqualification  still  exists  as  to  the  defense  in 
suits  brought  by  administrators.  Thompson  v.  Wilson,  56  111.  App. 
159. 

Husband  and  wife. —  At  common  law,  the  husband  or  wife  was  not 
a  competent  witness  for  or  against  the  other.  Keep  v.  Griggs,  12 
Brad.  511;  Waddams  v.  Humphrey,  22  111.  661;  Rea  v.  Tucker,  51 
111.  110. 

The  wife  may  be  a  witness  when  her  husband  may.  Illinois  Cent. 
R.  R.  Co.  v.  Taylor,  24  111.  323. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  525 

A  husband  or  wife  cannot  testify  where  the  adverse  party  is  an 
executor.  Harriman  v.  Sampson,  23  111.  App.  159 ;  Treleaven  v. 
Dixon,  119  111.  548,  550. 

A  husband  is  not  a  competent  witness  for  his  wife  who  has  sued 
an  executor.     Mann  v.  Forein,  166  111.  446. 

A  husband  cannot  testify  for  or  against  his  wife  upon  her  trial 
for  adultery.     Miner  v.  People,  58  111.  59. 

In  malicious  prosecution,  the  wife  of  the  plaintiff  is  incompetent. 
Mitchinson  v.  Cross,  58  111.  366. 

A  wife  cannot  testify  in  behalf  of  her  husband  in  a  suit  to  cancel 
a  deed  on  the  ground  of  duress.  Rendleman  v.  Rendleman,  156 
111.  568. 

The  wife  of  the  defendant  is  not  a  competent  witness  for  him  in 
a  slander  suit.     Hanover  v.  Hanover,  78  111.  412. 

Ill  a  suit  by  an  executor,  the  widow  cannot  testify  for  the  plain- 
tiff in  reference  to  a  conversation  between  the  defendant  and  the 
deceased.     Reeves  v.  Herr,  59  111.   81. 

In  litigation  respecting  the  separate  estate  of  the  wife,  the  hus- 
band is  a  competent  witness  for  her.  Waggonseller  v.  Rexford,  2 
Brad.  455;  Frank  v.  Eggleston,  92  111.  515;  Wing  v.  Goodman.  75  111. 
159;  Flynn  v.  Gardner,  3  111.  App.  253;  Mueller  v.  Rebham,  94 
111.  142;  Johnson  v.  McGregor,  157  111.  350;  Pfissing  v.  Hciter,  91 
111.  App.  407 ;  Toler  v.  Bishop,  84  111.  App.  278 ;  Best  v.  Jenks,  123 
111.  447,  453;  Stout  v.  Ellison,  15  111.  App.  222. 

Under  section  5  of  the  act  relating  to  evidence,  the  husband  and 
wife  may  be  witnesses  in  behalf  of  or  against  each  other,  except  as 
therein  otherwise  provided.  Mueller  v.  Rebham,  94  111.  142; 
Cordery  v.  Hughes,  6  Brad.  401;  Smith  v.  Long,  106  111.  485;  Keep 
v.  Griggs,  12  Brad.  511;  Eads  v.  Thompson,  109  111.  87. 

In  a  suit  by  a  wife  for  money  lost  by  her  husband  at  gaming,  the 
husband  is  a  competent  witness.  Johnson  v.  McGregor,  55  111.  App. 
530. 

As  to  corroboration  of  the  husband's  testimony  by  the  wife  in  a 
suit  in  which  he  was  not  interested,  see  L.  A.  &  N.  C.  Gravel  Road 
v.  Madans,  102  111.  417. 

A  wife  is  a  competent  witness  to  prove  the  consideration  of  a 
deed  made  to  her  by  the  husband.     Payne  v.  Miller,  103  111.  442. 

A  wife  is  not  competent  as  a  witness  for  her  husband  in  arbitra- 
tion proceedings  under  Rev.  Stat.,  chap.  10,  sees.  16  and  IS.  Seaton 
v.  Kendall,  174  111.  410.  49  N.  E.  561. 


526  A  DIGEST  OF  [Part  III. 

Where  the  adverse  party  sues  the  defendant  as  the  representative 
of  a  deceased  person,  a  husband  and  wife  cannot  testify  for  or 
against  each  other.     Mann  v.  Forein,  69  111.  App.  318. 

A  wife  may  testify  for  or  against  her  husband  as  to  any  matter 
as  to  which  she  acts  as  his  agent.  Illinois  Cent.  R.  R.  Co.  v.  Mess- 
nard,  15  111.  App.  213;  Mitchell  v.  Hughs,  24  111.  App.  308. 

The  wife  cannot  testify  in  a  suit  of  trespass  brought  against  her 
husband,  when  offered  as  a  witness  in  his  behalf.  Wolf  v.  Van- 
housen,  55  111.  App.  295. 

A  wife,  who  is  a  party,  is  a  competent  witness  for  herself.  Kelly 
v.  Hale,  59  111.  App.  568. 

If  a  husband  is  interested,  a  wife  is  not  competent.  McGrath  v. 
Miller,  61  111.  App.  497. 

Divorced  wife  is  incompetent  to  testify  as  to  the  impotency  of 
her  former  husband.  Griffith  v.  Griffith,  162  111.  368,  reversing  55 
111.  App.  474. 

In  a  suit  to  partition  land  of  a  deceased  husband,  the  widow  is 
competent  as  to  facts  occurring  after  his  death.  Gillespie  v.  Gilles- 
pie, 159  111.  84. 

As  to  the  testimony  of  husband  and  wife  under  the  statute,  see 
Wilcoxon  v.  Read,  95  111.  App.  33. 

As  to  the  testimony  of  husband  and  wife  in  actions  against  them, 
see  Vercler  v.  Jansen,  96  111.  App.  328. 

As  to  divorced  wife  as  witness,  see  Maher  v.  Title  Guarantee  & 
Trust  Co.,  95  111.  App.  365. 

Adverse  party  as  witness. —  The  adverse  party  may  be  examined 
as  a  witness.     Smith  v.  Rosenbaum,  19  Ind.  256. 

If  the  adverse  party  fails  to  attend  as  a  witness,  judgment  may 
be  entered  against  him.  Belton  v.  Smith,  45  Ind.  291;  Nelson  v. 
Neely,  63  Ind.   194. 

Or  may  be  punished  for  contempt.  Chaffin  v.  Brownfield,  88  Ind. 
305. 

The  adverse  party  may  be  cross-examined  in  his  own  behalf. 
Mosier  v.  St  oil,  119  Ind.  244. 

In  partition  suits  between  heirs,  the  party  is  not  competent  un- 
less he  is  required  by  the  court  to  testify,  or  has  been  called  by  the 
other  party.    Dille  v.  Webb,  61  Ind.  85. 

As  to  executors  as  witnesses,  see  Shirts  v.  Rooker,  21  Ind.  App. 
420. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  527 

Objection  for  incompetency. —  The  ground  of  objection  to  the  com- 
petency of  a  witness  must  be  pointed  out  to  the  court,  or  the  over- 
ruling of  the  objection  cannot  be  assigned  for  error.  Whitewater 
Valley  Canal  Co.  v.  Doic,  1  Ind.  141. 

If  the  objection  goes  to  the  competency  of  a  witness  himself,  it  is 
not  necessary  to  state  what  counsel  expects  to  prove  by  him.  State 
v.  Thomas,  111  Ind.  515. 

New    Jersey. 

Disqualification  for  interest  abolished. —  G.  S.  1895,  "  Evidence,"  3. 

Parties  to  an  action  are  competent  when  called  by  the  adverse 
party.     G.  S.  1895,  "  Evidence,'-  2,  6. 

Crime. —  Conviction  of  crime  no  longer  disqualifies.  G.  S.  1895, 
I  Evidence,"    1. 

Youth.— Whether  a  boy  of  twelve  years  is  competent  to  testify  is 
largely  in  the  discretion  of  the  trial  court;  boy  held  competent  in 
this  case.     State  v.  Cracker,  65  N.  J.  L.  410. 

Atheists. — Percey  v.  Powers,  51  N.  J.  L.  432;  Van  Pelt  v.  Van  Pelt, 
Pen.  657 ;   Smith  v.  Drake,  23  N.  J.  Eq.  302. 

Witness  not  incompetent  because  he  is  not  an  orthodox  believer. 
miller  v.  Miller,  1  Green,  139. 

Attorneys. —  The  attorney  conducting  the  case  is  not  an  incompe- 
tent witness.     Roston  v.  Morris,  25  N.  J.  L.  173. 

Judge. —  A  justice  cannot  be  a  witness  in  his  own  court.  Corlies 
v.  Vannote,  1  Hal.  324;  Outcalt  v.  Rankin,  2  Green,  33;  Paterson 
v.  Schenck,  3  Green,  434 ;   McCormick  v.  Brookfield,   1   South.  69. 

Lack  of  mental  capacity. —  Den.  v.  Van  Cleve,  2  South.  589,  653; 
Donnelly  v.  State,  26  N.  J.  L.  601,  620;  Van  Pelt  v.  Van  Pelt,  Pen. 
657 :   James  v.  Stonebanks,  Coxe,  227. 

Husband  and  wife. —  Husband  and  wife  now  competent  and  com- 
pellable witnesses  in  any  civil  action  to  which  either  is  a  party. 
Foley  v.  Loughran,  60  N.  J.  L.  464;  Lippincott  v.  Wikoff,  54  N.  J. 
Eq.  107. 

Objections  because  of  incompetency. —  Objection  to  a  witness  on 
ground  of  incompetency  ought  to  be  made  when  he  is  sworn.  Den. 
v.  Ashmore,  2  Zab.  261 ;  Chambers  v.  Hunt,  2  Zab.  552 ;  Coil  v.  Wal- 
lace, 4  Zab.  291;  Den.  v.  Geiyer,  4  Hal.  225;  Graham  v.  Berryman, 
19  N.  J.  Eq.  29.  21  N.  J.  Eq.  370;  Price  v.  Ward.  2  Hal.  127. 

Cross-examining  a  witness  does  not  waive  an  objection  to  him 
on  the  ground  of  incompetency.  Meeker  v.  Boylan,  28  N.  J.  L.  274; 
Ogden  v.   Robertson,  3   Green,   124. 


528  A  DIGEST  OF  [Pabt  III. 

Objection  to  the  competency  of  a  witness  may  be  waived.  Boone 
v.  Ridgway,  29  N.  J.  Eq.  543.  And  it  is  regarded  as  waived  unless 
made  promptly.  Monfort  v.  Roivland,  38  N.  J.  Eq.  181,  40  N.  J. 
Eq.  281;   Fennimore  v.   Childs,   1  Hal.  318. 

A  court  should  sometimes  of  its  own  motion  disregard  incompe- 
tent evidence.    Sherman  v.  Lanier,  39  N.  J.  Eq.  249. 

Transactions  with  one  deceased. —  Under  the  revision  of  1900  par- 
ties to  a  suit  are  competent  witnesses  notwithstanding  their  inter- 
est, but  if  either  sues  as  the  representative  of  a  deceased  person 
the  other  cannot  testify  as  to  transactions  had  with  such  deceased, 
until  such  deceased's  representative  testifies  to  some  transaction 
with  his  deceased.  This  rule  applies  even  where  both  parties  are 
acting  in  such  representative  capacity.  Lodge  v.  Hulings,  64  N.  J. 
Eq.  761.  See  Haines  v.  Watts,  55  N.  J.  L.  149;  Bell  v.  Samuels,  60 
N.  J.  L.  370;   Thompson  v.  West,  56  N.  J.  Eq.  660. 

General  rule  where  one  party  is  acting  in  a  representative  capac- 
ity. Montgomery  v.  Simpson,  31  N.  J.  Eq.  1;  Larison  v.  Polhemus, 
36  N.  J.  Eq.  506;  Baker  v.  Galpin,  39  N.  J.  Eq.  491;  Woolverton 
v.  Van  Syckel,  57  N.  J.  L.  393;  Dicker  son  v.  Payne,  66  N.  J.  L.  351; 
Greenwood  v.  Henry,  52  N.  J.  Eq.  447;  McCartin  v.  McCartin,  45 
N.  J.  Eq.  265;   Christopher  v.  Wilkins,  64  N.  J.  Eq.  354. 

Heirs-at-law  are  representatives  within  the  meaning  of  the  stat- 
ute. Colfax  v.  Colfax,  32  N.  J.  Eq.  206;  Joss  v.  Alohn,  55  N.  J.  L. 
407. 

Where  defendant  dies  during  the  pendency  of  an  action  the 
plaintiff  thereupon  becomes  an  incompetent  witness  as  to  transac- 
tions with  the  defendant.  Osborne  v.  O'Reilly,  43  N.  J.  Eq.  647; 
reversing  S.  C,  42  N.  J.  Eq.  467;  Beckhaus  v.  Ladner,  48  N.  J.  Eq. 
152,  50  N.  J.  Eq.  487. 

If  after  one  party  has  testified  in  an  action  the  opposite  party 
dies,  the  evidence  so  given  remains  competent.  Marlatt  v.  War- 
wick,  18  N.  J.  Eq.   108.   19  N.  J.  Eq.  439. 

Having  proved  a  contract  with  deceased,  the  plaintiff  is  there- 
after a  competent  witness  to  show  his  performance  thereof  not  in 
the  presence  of  deceased.     Provost  v.   Robinson,  58  N.  J.  L.  222. 

When  a  party  sues  or  is  sued  in  a  representative  capacity,  such 
party's  husband  or  wife  is  a  competent  witness  to  transactions  be- 
tween such  party  and  the  deceased.  Foley  v.  Loughran,  60  N.  J.  L. 
464;  Rairdon  v.  Sampson,  67  N.  J.  L.  346. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  529 

When  the  suit  is  by  a  corporation  against  the  representative  of  a 
deceased  person,  the  officers  of  the  corporation  are  competent  wit- 
nesses as  to  transactions  with  deceased.  New  Jersey  Trust  Co.  v. 
Camden  Safe  D.  Co.,  58  N.  J.  L.  196. 

In  an  action  against  the  estate  of  a  deceased  person  by  the  as- 
signee of  certain  contract  rights,  the  assignor  is  a  competent  wit- 
ness as  to  his  transactions  with  the  deceased.  Cullen  v.  Woolver- 
ton,  65  N.  J.  L.  279. 

Statute. —  Disqualification  of  a  party  when  the  opposite  party  is 
acting  in  a  representative  capacity.  G.  S.  1895,  "  Evidence,"  3,  4, 
12,    53. 

Maryland. 

Interest  and  crime. —  Disqualification  because  of  interest  or  crime 
is  now  removed.  P.  G.  L.  1888,  art.  35,  sec.  1.  But  such  interest 
or  crime  may  be  proved  to  affect  the  credibility  of  the  witness. 
P.  G.  L.   1888,  art.  35,  sec.  5. 

Conviction  for  perjury  still  disqualifies.  P.  G.  L.  1888,  art.  35. 
sec.   1. 

Youth. —  It  is  for  the  trial  court  to  determine  whether  a  young 
child  is  a  competent  witness.     Freeny  v.  Freeny,  80  Md.  406. 

Atheist. —  At  common  law,  one  who  does  not  believe  in  God  is  an 
incompetent  witness.     Arnd  v.  Amling,  53  Md.   192. 

Husband  and  wife. —  A  wife  is  a  competent  witness  in  an  action  by 
her  to  set  aside  a  marriage  contract  as  a  forgery.  Classen  v.  Clas- 
sen, 57  Md.  510. 

Husband  and  wife  are  competent  witnesses  in  a  suit  to  declare 
the  marriage  void,     he  Brun  v.  he  Brun,  55  Md.  496. 

One  claiming  to  be  the  widow  of  the  deceased  is  not  competent 
as  to  the  fact  of  marriage.     Redgrave  v.  Redgrave.  38  Md.  93. 

Interest.—  Authorities  as  to  disqualification  on  the  ground  of  in- 
terest. Highberger  v.  Stiffler,  21  Md.  350;  Insurance  Co.  v.  Crane,  16 
Md.  260;   Turnpike  Co.  v.  State,   19  Md.  239. 

Legatees  under  a  will  are  competent  witnesses  in  regard  to  it. 
Harris  v.  Pue,  39  Md.  535.  And  so  are  heirs-at-law  petitioning  for 
a  share  in  the  distribution  of  an  estate.  Jones  v.  Jones.  36  Md. 
447. 

When  one  party  to  a  transaction  is  dead  or  insane. —  See  Code, 
art.   35,  sec.  2. 

The  surviving  party  is  incompetent  to  testify  as  to  such  transac- 
tion.    Wright  v.  Gilbert,  51  Md.  146;   Robertson  v.  Moioell,  66  Md. 
24 


630  A  DIGEST  OF  [PajjtIII. 

530;  Webster  v.  Le  Compte,  74  Md.  249;  Gunther  v.  Bennett,  72 
Md.  384;  Staudford  v.  Horwitz,  49  Md.  525;  Johnson  v.  Heald, 
33  Md.  352;   Wienecke  v.  Ar&in,  88  Md.  182. 

A  stockholder  in  a  corporation  is  not  incompetent  in  regard  to  a 
contract  of  the  corporation,  even  though  the  other  party  thereto 
be  dead.    Downes  v.  Railroad  Co.,  37  Md.  100. 

When  a  corporation  contracts  with  a  person,  the  agent  of  the 
corporation  who  negotiated  the  contract  is  a  competent  witness 
even  though  the  other  party  is  dead  or  insane.  Flach  v.  Gotts- 
chalk  Co.,  88  Md.  368. 

The  death  of  the  agent  of  a  corporation  or  firm  who  acted  for 
it  in  making  a  contract  does  not  render  the  other  party  incompetent. 
South  Balto.,  etc.,  Co.  v.  Muhlbach,  69  Md.  395;  Spencer  v.  Traf- 
ford,  42  Md.   1. 

The  surviving  party  is  incompetent  only  as  to  a  contract  or 
cause  of  action  in  issue  and  on  trial.  Wright  v.  Gilbert,  51  Md. 
146;  Leiter  v.  Grimes,  35  Md.  434;   Smith  v.  Wood,  31  Md.  293. 

Devisees  under  a  will  do  not  have  such  an  adverse  interest  as  to 
be  incompetent  to  testify  against  an  executor  on  his  claim  for 
services.     Bantz  v.  Bantz,  52  Md.  686. 

A  witness  is  not  incompetent  in  case  any  of  the  several  parties 
with  whom  he  made  a  contract  is  living.  Simmons  v.  Haas,  56  Md. 
153. 

The  death  of  one  partner  does  not  disqualify  the  other  partners 
as  witnesses  concerning  contracts  of  the  firm.  Hardy  v.  Ches.  Bank, 
51  Md.  562. 

But  they  are  disqualified  in  a  suit  for  an  accounting  brought  by 
a  representative  of  the  deceased  partner.  Sangston  v.  Hack,  52  Md. 
173.     See  McKaig  v.  Hebb,  42  Md.  227. 

The  death  of  one  party  after  the  testimony  of  the  other  is  taken 
does  not  render  such  testimony  incompetent.  Armitage  v.  Snowden, 
41    Md.    119. 

On  the  question  of  which  of  two  mortgages  is  prior  one  mortgagee 
is  not  incompetent  by  reason  of  the  death  of  the  other.  Swartz  v. 
Chickering,  58  Md.  290. 

An  assignee  of  a  life  insurance  policy  is  competent  to  testify  as 
to  the  consideration  for  such  assignment  from  the  deceased  aa 
against  another  assignee.     Diffenbach  v.  Vogeler,  61  Md.  370. 

But  the  surviving  party  to  a  written  contract  is  competent  to 
prove  its  loss.     AM  v.  AM,  71  Md.  555. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  531 

In  an  action  for  specific  performance  of  a  contract,  made  by  one 
now  dead,  to  convey  a  house,  the  plaintiff  is  not  a  competent  wit- 
ness.    Polk  v.  Clark,  92  Md.  372. 

One  is  not  rendered  incompetent  to  testify  as  to  a  contract  by 
reason  of  the  death  of  the  other  party  to  it,  in  case  the  negotia- 
tions were  with  an  agent  of  such  deceased  party  and  the  agent  is 
living  and  competent.     Warth  v.  Brafman,  85  Md.  674. 

Surviving  party. —  Disqualification  on  the  ground  that  the  other 
party  to  the  suit  or  contract  is  dead  or  insane.  P.  G.  L.  1888,  art. 
35,  sec.  2,  and  chap.  495,  Laws  of  1902. 

Time  for  objecting. —  An  objection  to  a  witness  on  the  ground  of 
incompetency  is  in  time  if  made  after  he  was  sworn  but  before  ex- 
amination.    ~\Yard  v.  Leitch,  30  Md.  326. 

Pennsylvania. 

Disqualification  for  interest  removed. —  Pepper  &  Lewis'  Digest  of 
Laws,  "  Witnesses,"  sec.  8. 

Every  witness  is  presumed  to  be  competent.  Pringle  v.  Pringle, 
59  Pa.  281;   McClelland  v.  West,  70  Pa.  183. 

The  testimony  of  a  witness  who  is  competent  at  the  time  he  tes- 
tifies is  not  rendered  inadmissible  by  his  subsequently  becoming  in- 
competent.   Wells  v.  Insurance  Co.,  187  Pa.  166. 

Youth. — A  boy  of  thirteen  is  old  enough  to  be  instructed  as  to  the 
nature  of  an  oath,  if  he  does  not  already  know  it.  Com.  v.  Wilson, 
186   Pa.    1. 

A  child  is  competent  if  he  believes  in  a  state  of  rewards  and  pun- 
ishments, and  knows  that  punishment  will  follow  falsehood.  Com. 
v.  Ellenger,  1  Brewst.  352;  Com.  v.  Carey,  2  Brewst.  404. 

Atheist  not  competent. —  Michenor  v.  Taggart,  7  Haz.  Leg.  Reg. 
112.  But  it  is  not  necessary  that  the  witness  should  believe  in  the 
everlasting  punishment,  if  he  believes  in  God.  Cub  bison  v.  Mc- 
Greary,  2  W.  &  S.  262;  Blair  v.  Seaver,  26  Pa.  274. 

Infamous  crime. —  One  convicted  of  an  infamous  crime  becomes 
competent  again  on  being  pardoned.  Hoffman  v.  Coster,  2  Whart. 
453;  Com.  v.  Railroad  Co.,  1  Grant,  329;  Bowser  v.  Com.,  51  Pa. 
332. 

Perjury. —  Conviction  of  perjury  is  still  a  disqualification.  Pepper 
&  Lewis'  Digest  of  Laws,  "  Witnesses,"  sec.  9 ;  "  Criminal  Proce- 
dure," sec.  80. 


532  A  DIGEST  OF  [Past  IIL 

One  convicted  of  perjury  and  afterward  pardoned  is  a  competent 
witness.     Diehl  v.  Itodyers,  169  Pa.  316. 

The  conviction  of  a  crime  less  than  infamous  does  not  disqualify. 
Com.  v.  Murphy,  3  Clark,  290  (receiving  stolen  goods)  ;  Bickel  v. 
Fasig,  33  Pa.  463  (conspiracy  to  defraud)  ;  Schuylkill  Co.  v.  Copley, 
67  Pa.  386  (embezzlement). 

In  trial  for  murder  a  witness  who  is  under  sentence  of  death  is 
a  competent  witness  for  the  State.     Com.  v.  Clemmer,  190  Pa.  202. 

Drunken  person. —  Gould  v.  Crawford,  2  Pa.  89. 

Attorneys. —  An  attorney  who  conducts  the  case  is  competent  as 
a  witness.  Follansbee  v.  Walker,  72  Pa.  228;  Frear  v.  Drinker, 
8  Pa.  520 ;  'Newman  v.  Bradley,  1  Dall.  240. 

Question  for  the  court. —  The  competency  of  a  witness,  on  ques- 
tions of  both  fact  and  law,  is  to  be  determined  by  the  court.  Sem- 
ple  v.  Gallery,  184  Pa.  95. 

Time  for  objecting. —  Objections  to  competency  of  a  witness,  if 
known,  are  waived  if  not  made  before  he  is  examined.  Patterson  v. 
Wallace,  44  Pa.   88. 

Incompetency  as  to  a  transaction  with  one  now  dead. —  See  act 
of  1887,  P.  L.  158;  Darragh  v.  Stevenson,  183  Pa.  397;  Stauffer  v. 
Insurance  Assn.,  164  Pa.  205;  Thomas  v.  Miller,  165  Pa.  216;  Acklin 
v.  McCalmont  Co.,  201  Pa.  257. 

One  who  has  had  a  transaction  with  a  person  now  dead  is  not  com- 
petent to  testify  in  regard  to  it  until  some  competent  witness  ad- 
verse to  the  surviving  party  has  testified  to  such  transaction.  Rob- 
bins  v.  Farwell,  193  Pa.  37;  Shroyer  v.  Smith,  2C4  Pa.  310;  Kauss 
v.  Iiohner,  172  Pa.  481. 

Witness  incompetent  as  to  a  transaction  with  one  now  deceased 
as  against  the  administrator.     Flanagan  v.  Nash,  185  Pa.  41. 

The  survivor  is  not  competent  as  to  a  contract  made  by  him  with 
a  deceased  member  of  a  partnership.     Jack  v.  Moyer.  1S7  Pa.  87. 

A  son  is  not  a  competent  witness  against  his  father's  estate  as  to 
an  agreement  with  his  father.     Schicab  v.  Ginkinger,  181  Pa.  8. 

An  heir-at-law  cannot  testify  against  the  title  conveyed  by  de- 
ceased.    Baldwin  v.  Stier,  191  Pa.  432. 

The  plaintiff  and  his  wife  are  both  incompetent  to  testify  as  to 
an  oral  lease  from  one  now  dead.  Myers  v.  Litis.  195  Pa.  595; 
Arrott  Mills  Co.  v.  Way  Mfg.  Co.,  143  Pa.  435;  Crothers  v.  Crothers, 
149  Pa.  201:  Baldwin  v.  Sticr.  191  Pa.  432:  Bitner  v.  Boone,  128 
Pa.  567;   Sutherland  v.  Ross,  140  Pa.  379. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  533 

Instances  where  the  rule  did  not  apply. —  The  survivor  is  not  dis- 
qualified unless  his  testimony  is  adverse  to  the  interests  of  the 
decedent.  Rine  v.  Hall,  187  Pa.  264;  Home  v.  Petty,  192  Pa.  32; 
Trymby,  Hunt  &  Co.  v.  Endress,  175  Pa.  G. 

A  widow  is  a  competent  witness  in  ejectment  as  against  pur- 
chasers at  a  sheriffs  sale  under  a  judgment  against  her  deceased 
husband.     Poundstone  v.  Jones,   187   Pa.  289. 

An  agent  who  transacted  business  for  his  principal  with  one 
since  deceased  is  a  competent  witness  as  to  the  transaction.  »S'ar- 
geant  v.  Insurance  Co.,  189  Pa.  341. 

Disqualification  removed. —  A  witness  becomes  competent  as  to^ 
transactions  with  one  now  deceased  when  he  releases  all  iriterest 
adverse  to  such  decedent's  estate.     Walls  v.  Walls,  182  Pa.  226. 

A  witness  who  is  incompetent  as  to  matters  occurring  with  a 
person  now  deceased  becomes  competent  as  to  all  such  matters  if 
called  by  the  adverse  party  to  testify  as  to  any  of  them.  Danley  v. 
Danley,  179  Pa.  170;  Watlcins  v.  Hughes,  206  Pa.  526. 

Surviving  party. —  Disqualification  of  a  surviving  party  as  a  wit- 
ness in  case  of  death,  lunacy,  etc.  Pepper  &  Lewis'  Digest  of  Laws. 
"  Witnesses,"  sees.   14-16,   18.   19. 

Husband  and  wife  as  witnesses  against  each  other. —  Pepper  & 
Lewis'  Digest  of  Laws,  "Witnesses,"  sees.  11,  12;  "Criminal  Pro- 
cedure," sec.  81 ;  Laws  of  1899,  page  41 ;  Laws  of  1903,  page  27. 

Article  108.*  * 
competency  in"  criminal.  cases. 

In  criminal  cases  the  accused  person,  and  his  or  her  wife 
or  husband,  and  every  person  and  the  wife  or  husband  of 
every  person  jointly  indicted  with  him,  and  tried  at  the 

*  See  Note  XLI. 
i  The  Criminal  Evidence  Act,  1898  (61  &  62  Vict.  c.  36),  by  sect.  6, 
applies  "  to  all  criminal  proceedings  notwithstanding  any  enactment  in 
force  at  the  commencement  of  this  Act,"  except  proceedings  for  non- 
repair of  highways,  etc.  (see  post),  and  Court  Martials,  unless  it  is 
applied  to  them  by  general  orders  under  the  Naval  Discipline  Act.  1866 
(29  &  30  Vict.  c.  109),  s.  65,    or  rules  under  the  Army  Act,  1882  (44 


534  A  DIGEST  OF  [Part  III. 

same  time,2  is  incompetent  to  testify;3  except  as  herein- 
after mentioned. 

Every  person  charged  with  an  offence,  and  the  wife  or 
husband,  as  the  case  may  be,  of  the  person  so  charged,  is  a 
competent  witness  for  the  defence  at  every  stage  of  the 

&  45  Vict.  c.  58),  s.  70.  By  sect.  7  it  does  not  extend  to  Ireland.  The 
enactments  referred  to  in  sect.  6  are  contained  in  a  number  of  Statutes, 
which,  before  1898,  made  accused  persons  and  their  wives  or  husbands 
competent  witnesses  to  different  extents,  in  different  specified  cases.  It 
seems  probable  that  subsequent  Statute  Law  Revision  Acts  will  repeal 
these  enactments.  Those  now  in  force,  and  subject  to  this  section,  are 
The  Metalliferous  Mines  Regulation  Act,  1872  (35  &  36  Vict.  c.  77), 
s.  34  (4)  ;  The  Licensing  Act,  1872  (35  &  36  Vict.  c.  94),  s.  51  (4)  ;  The 
Sale  of  Food  and  Drugs  Act,  1875  (38  &  39  Vict.  c.  63),  s.  21;  The 
Conspiracy  and  Protection  of  Property  Act,  1875  (38  &  39  Vict.  c.  86), 
s.  11;  The  Threshing  Machines  Accidents  Prevention  Act,  1878 
(41  &  42  Vict.  c.  12),  s.  3;  The  Army  Act,  1882  (44  &  45  Vict.  c.  58), 
s.  156  (3)  ;  The  Explosives  Act,  1883  (46  &  47  Vict.  c.  3),  s.  4  (2)  ; 
The  Married  Women's  Property  Act,  1884  (47  &  48  Vict.  c.  14), 
s.  1,  as  to  which  see  post  in  the  above  article;  The  Criminal  Law 
Amendment  Act,  1885  (48  &  49  Vict.  c.  69),  s.  20;  The  Merchandise 
Marks  Act,  1887  (50  &  51  Vict.  c.  28),  s.  10  (1);  The  Coal  Mines 
Regulation  Act,  1887  (50  &  51  Vict.  c.  58),  s.  62  (2)  ;  The  Law  of 
Libel  Amendment  Act,  1888  (51  &  52  Vict.  c.  64),  s.  9;  The  Pre- 
vention of  Cruelty  to  Children  Act,  1894  (57  &  58  Vict.  c.  41),  s.  12; 
The  Building  Societies  Act,  1894  (57  &  58  Vict.  c.  47),  s.  24;  The 
Diseases  of  Animals  Act,  1S94  (57  &  58  Vict.  c.  57),  s.  57  (3)  ;  The 
Merchant  Shipping  Act.  1894  (57  &  58  Vict.  c.  60),  s.  694;  The  Law 
of  Distress  Amendment  Act,  1895  (58  &  59  Vict.  c.  24),  s.  5;  The 
False  Alarms  of  Fire  Act,  1895  (58  &  59  Vict.  c.  28),  s.  2;  The  Fac- 
tory and  Workshop  Act,  1895  (58  &  59  Vict.  c.  37),  s.  49;  The  Cor- 
rupt and  Illegal  Practices  Prevention  Act,  1895  (58  &  59  Vict.  c. 
40),  s.  2;  The  Chaff-cutting  Machines  (Accidents)  Act,  1897  (60 
Sl  61   Vict.  c.  60,  s.  5. 

2  Not  if  they  are  tried  separately;  Windsor  v.  R.,  1866,  L.  R.  1  Q. 
B.  390;  Re,  Bradlaugh,  15  Cox,  257. 

3  R.  v.  Payne,  1872,  1  C.  C.  R.  349;  and  R.  v.  Thompson,  1872,  lb.  377. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  535 

proceedings,4  whether  the  person  so  charged  is  charged 
solely  or  jointly  with  any  other  person;  provided — 

a  person  so  charged  shall  not  be  called  as  a  witness  ex- 
cept upon  his  own  application;  and 

the  wife  or  husband  of  a  person  so  charged  cannot  be 
called  as  a  witness  except  upon  the  application  of  the  per- 
son so  charged.5 

But  the  wife  or  husband  of  a  person  charged  may  be 
called  as  a  witness  either  for  the  prosecution  or  defence, 
and  without  the  consent  of  the  person  charged,  if  he  is 
charged  with — 

(a)  an  offence  under  any  enactment  mentioned  in  the 
footnote  hereto;6  or 

(&)  an  offence  as  to  which  the  wife  or  husband  of  the 
person  charged  may  by  common  law  be  called  as  a  witness 
without  his  or  her  consent,  i.  e.  an  offence  consisting  of  any 

4  This  does  not  include  proceedings  before  a  Grand  Jury ;  R.  V. 
Rhodes,  [1899],  1  Q.  B.  77. 

5  61  &  62  Vict.  c.  36,  s.  1. 

6/6.  ss.  1  (c. ),  4.  The  enactments  referred  to  are  set  out  in  the 
Schedule  to  the  Act,  being  The  Vagrancy  Act,  1824  (5  Geo.  IV,  c.  83), 
the  enactment  punishing  a  man  for  neglecting  to  maintain  or  deserting 
his  wife  or  any  of  his  family;  The  Poor  Law  (Scotland)  Act,  1845 
(8  &  9  Vict.  c.  83),  s.  80,  relating  to  the  like  or  neglect  to  main- 
tain an  illegitimate  child;  The  Offences  against  the  Person  Act,  1861 
(24  &  25  Vict.  c.  100),  ss.  48-55,  relating  to  rape,  indecent  assault 
on  a  female,  abduction;  The  Married  Women's  Property  Act,  1882 
(45  &  46  Vict.  c.  75),  ss.  12  and  16,  relating  to  offences  by  a  married 
man  or  woman  against  his  wife's  or  her  husband's  property,  as  to  which 
see  supra;  The  Criminal  Law  Amendment  Act,  1885  (48  &  49  Vict, 
c.  69)  ;  and  The  Prevention  of  Cruelty  to  Children  Act,  1894  (57  &  58 
Vict.  c.  41). 


536  A  DIGEST  OF  [PabtIIL 

bodily  injury  or  violence  inflicted  on  his  or  her  wife  or 
husband.7 

In  any  such  criminal  proceeding  against  a  husband  or  a 
wife,  as  is  authorised  by  the  Married  Women's  Property 
Act,  1882  (45  &  46  Vict.  c.  75,  ss.  12  and  16),  the  hus- 
band and  wife  respectively  are  competent  and  admissible 
witnesses,  and  except  when  defendant  compellable  to  give 
evidence.8 

The  following  proceedings  at  law  are  not  criminal 
within  the  meaning  of  this  article : — 

Trials  of  indictments  for  the  non-repair  of  public  high- 
ways or  bridges,  or  for  nuisances  to  any  public  highway, 
river,  or  bridge;9 

Proceedings  instituted  for  the  purpose  of  trying  civil 
rights  only;9 

"61  &  62  Vict.  c.  36,  ss.  1  (c),  4;  and  as  to  the  common  law,  see 
R.  v.  Wakefield,  1877,  2  Lew.  287;  and  Reeve  v.  Wood,  18G4,  5  B.  &  S. 
364.  The  common  law  lias  also  been  supposed  to  apply  to  treason, 
Taylor's  Ev.  s.  1372. 

8  47  Vict.  c.  14,  which  must  be  read  as  subject  to  61  &  62  Vict. 
c.  36,  ante;  and  see  the  case  of  R.  v.  Brittleton,  1884,  12  Q.  B.  D.  266, 
which  turns  on  the  wording  of  the  Act  of  1882,  and  occasioned  this 
enactment.  The  following  doubt  arises  on  the  effect  of  this  enactment. 
Does  it  mean  (a)  only  that  the  wife  is  competent  as  against  the  husband, 
and  the  husband  as  against  the  wife,  notwithstanding  their  marriage,  or 
(6)  that  in  such  cases  not  only  the  prosecutor,  though  married  to  the 
prisoner,  but  the  prisoner,  though  prisoner  and  though  married,  is  to  be 
competent,  though  the  prisoner  is  not  to  be  compellable?  It  is  observ- 
able that  the  first  "  husband  and  wife  "  does  not  become  "  wife  or 
husband "  before  the  word  "  respectively,"  as  would  have  been 
natural.  Tt  is  also  remarkable  that  in  the  Act  of  1882  a 
criminal  proceeding  is  described  as  "  a  remedy  " —  a  very  peculiar 
phrase. 

9  40  &  41  Vict.  c.  14.  The  provisions  of  this  Act  are  not  affected  by 
The  Criminal  Evidence  Act,  1898,  61  &  62  Vict.  c.  36,  s.  6;  see  ante, 
p.  414,  note  1. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  537 

Proceedings  on  the  Revenue  side  of  the  Exchequer  Di- 
vision of  the  High  Court  of  Justice.10 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  330,  334- 
336,  362,  363;  1  Wharton's  Criminal  Evidence,  sec.  421  et  seq.;  29 
Am.  &  Eng.  Encyclopaedia  of  Law,  p.  552;  Rapalje  on  Witnesses, 
sec.  146  et  seq.;  Hiler  v.  People,  156  111.  511;  Eolley  v.  State,  105 
Ala.  100;  State  v.  Pain,  48  La.  Ann.  311;  Holman  v.  State,  72  Miss. 
108. 

By  statute  now  a  witness  may  generally  testify  if  he  so  wishes, 
but  his  failure  to  take  the  stand  may  not  be  commented  upon, 
nor  does  it  give  rise  to  any  presumption  against  him.  Wilson  v. 
U.  S.,  149  U.  S.  60;  Com.  v.  Scott,  123  Mass.  239;  Watt  v.  People, 
126  111.  9;  Tarbrough  v.  State,  70  Miss.  593;  Showalter  v.  State,  84 
Ind.  562;  Conway  v.  State,  118  Ind.  482;  State  v.  Smith,  86  N.  C. 
705;  Kidwell  v.  Com.,  97  Ky.  538. 

The  jury  may  consider  his  interest  in  weighing  his  testimony. 
Reagan  v.  U.  S.,  157  U.  S.  301 ;  State  v.  Pratt,  121  U.  S.  566;  Doyle 
v.  People,  147  111.  394. 

Persons  jointly  indicted. —  Those  jointly  indicted  may,  now,  gen- 
erally, by  statute,  be  witnesses  for  or  against  each  other.  Com.  v. 
Brown,  130  Mass.  279;  Wilson  v.  U.  S.,  149  U.  S.  60;  Watt  v.  Peo- 
ple, 126  111.  9;  People  v.  Sansome,  98  Cal.  235;  Showalter  v.  State, 
84  Ind.  562;  Yarlrough  v.  State,  70  Miss.  593. 

People  jointly  indicted  may  be  competent  witnesses.  State  v. 
Smith,  86  N.  C.  705 ;  Kidwell  v.  Com.,  97  Ky.  538 ;  Conway  v.  State, 
118  Ind.  482;  Com.  v.  Brown,  130  Mass.  279. 

If  a  nolle  has  been  entered  in  the  case  of  the  one  jointly  indicted, 
or  if  he  has  been  acquitted,  he  becomes  competent.  State  v.  Walker, 
98  Mo.  95;  Love  v.  People,  160  111.  501.  So,  if  he  has  been  convicted. 
Brown  v.  Com.,  86  Va.  935;  State  v.  Minor,  117  Mo.  302;  State  v. 
Jones,  51  Me.  125.  Contra,  Kehoe  v.  Com.,  85  Pa.  St.  127.  So,  if  he 
is  to  have  a  separate  trial.     Benson  v.  U.  S.,  146  U.  S.  325;  Allen  v. 

io  28  &  29  Vict.  c.  104,  s.  34. 


538  A.  DIGEST  OF  [Part  III. 

State,  10  0.  St.  287;  Smith  v.  Com.,  90  Va.  759;  Noyes  v.  State,  41 
N.  J.  L.  418.     Contra,  Staup  v.  Com.,  74  Pa.  St.  458. 

Husband  or  wife. —  Lucas  v.  State,  23  Conn.  19,  20;  State  v. 
Gardner,  1  Root  (Conn.),  485.  See  Conn.  Gen.  Stats.,  sec.  1623. 
See  also  Com.  v.  Sapp,  90  Ky.  580;  SfoJe  v.  Pennington,  124  Mo.  388; 
State  v.  Gwesf,  100  N.  C.  410;  State  v.  Chambers,  187  la.  1;  Bassett 
v.  ?7.  ST.,  137  U.  S.  496;  People  v.  Quanstrom,  93  Mich.  259;  Love  v. 
People,  160  111.  507. 

Now,  generally,  by  statute,  the  husband  or  wife  of  the  accused  may 
testify  as  to  everything  except  confidential  communications  (e.  g., 
Maine  Rev.  Stats.,  chap.  134,  sec.  19;  Mass.  Pub.  Stats.,  chap.  169, 
sec.  18,  par.  3).     See  Com.  v.  Moore,  162  Mass.  441. 

A  husband  or  wife  may  be  a  competent  witness  to  a  bodily  assault 
committed  upon  the  witness  by  the  other  party  to  the  relation. 
Johnson  v.  State,  94  Ala.  53;  State  v.  Pennington,  124  Mo.  388. 

In  some  States  husbands  and  wives  may  testify  against  each  other 
in  prosecutions  for  bigamy,  incest  or  adultery.  Lord  v.  State,  17 
Neb.  526;  State  v.  Chambers,  87  la.  1.  Contra,  Bassett  v.  V.  S.,  137 
U.  S.  496;  McLean  v.  State,  32  Tex.  App.  521;  People  v.  Quanstrom, 
93  Mich.  254. 

In  the  Federal  courts,  accused  persons  and  their  wives  and  hus- 
bands are  competent  witnesses,  but  cannot  be  compelled  to  testify. 
Act  of  Congress,  March  19,  1878,  chap.  37,  Rev.  Stats,  of  U.  S., 
sec.  858a. 

A  wife  cannot  ordinarily  testify  against  her  husband  in  a  crim- 
inal case.     Wilke  v.  People,  53  N.  Y.  525. 

New   Jersey. 

Defendant. —  Person  indicted  is  competent  in  his  own  behalf. 
G.  S.   1895,  "Evidence,"  8. 

Joint  defendants. —  Joint  defendants  in  larceny  are  incompetent  on 
behalf  of  each  other.  State  v.  Carr,  Coxe,  1.  See  State  v.  Brien, 
32  N.  J.  L.  414. 

The  court  may  order  an  accomplice  acquitted  or  a  nolle  prosequi 
may  be  entered  for  the  purpose  of  rendering  a  witness  competent. 
State  v.  Graham,  41  N.  J.  L.   15. 

A  coconspirator  who  has  pleaded  guilty  is  a  competent  witness 
for  the  State.     U.  S.  v.  Sacia,  2  Fed.  Rep.  754. 

One  jointly  indicted  with  the  defendant  is  a  competent  witness 
for  the  State  in  a  separate  trial.     Noyes  v.  State,  31  N.  J.  L.  418. 


Chap.  XV.J  THE  LAW  OF  EVIDENCE.  539 

Rule  as  to  husband  and  wife. —  G.  S.  1895,  "  Evidence,"  5,  51,  54, 
57,   73;    "Disorderly   Persons,"    18. 

Wife  competent  against  the  husband  in  prosecutions  for  desertion 
and  nonsupport.     Laws  of  1903,  chap.  210. 

Where  two  parties  have  been  jointly  indicted  and  a  severance  lias 
been  had,  the  wife  of  one  of  the  defendants  is  a  competent  witness 
against  the  other.     Munyon  v.  State,  62  X.  J.  L.  1. 

Forgery. —  Person  whose  name  has  been  forged  is  competent  on 
trial  of  an  indictment  for  the  forgery.     G.   S.   1S95,  "  Evidence,"  7. 

Maryland. 

Defendant. —  The  defendant  in  a  criminal  prosecution  is  a  compe- 
tent but  not  a  compellable  witness.     P.  G.  L.  1888,  art.  35,  sec.  3. 

Accessory. —  One  indicted  as  an  accessory  before  the  faet  is  not 
competent  on  behalf  of  the  accused,  his  principal.  Davis  v.  State, 
38   Md.    15. 

Husband  and  wife. —  A  husband  and  a  wife  are  not  competent  as 
against  each  other.  Turpin  v.  State,  55  Md.  462;  Hanon  v.  State, 
63   Md.   123. 

Husband  or  wife  of  the  accused  is  competent.  P.  G.  L.  1S88,  art. 
35,  sec.  3. 

In  actions  in  which  a  husband  and  wife  are  not  directly  inter- 
ested, each  is  a  competent  witness,  although  the  testimony  tends 
to  incriminate  the  other.     Funk  v.  Kincaid,  5  Md.  404. 

In  prosecution  for  wife-beating,  the  wife  is  a  competent  witness 
against  her  husband.     Hanon  v.  State,  63  Md.  123. 

How  a  former  conviction  may  be  proved.  P.  G.  L.  1S88,  art.  35, 
sec.   5. 

Pennsylvania. 

Statute. —  All  persons  made  competent  witnesses,  except  those 
convicted  of  perjury  and  in  certain  cases  husband  and  wife.  Pep- 
per &  Lewis'  Digest  of  Laws,  "Criminal  Procedure,"  sees.  79-81; 
"Witnesses,"  sees.  1-3;  Laws  of  1899,  page  41;  Laws  of  1903, 
page  27. 

Husband  and  wife. —  By  statute,  a  wife  is  a  competent  witness 
for  her  husband  but  not  against  him.  T 'eager  v.  Weaver.  04  Pa. 
425:  Cowley  v.  Wilson.  7  Phila.  676:  Craig  v.  Brendel.  09  Pa.  153: 
Ballentine  v.  White,  77  Pa.  20. 


640  A  DIGEST  OF  [Pabt  111. 

A  wife  is  incompetent  to  testify  against  her  husband  in  a  crimi- 
nal case.  Com.  v.  Faynter,  8  Phila.  009;  Com.  v.  McEwen,  1  Clark, 
140. 

Where  two  are  jointly  indicted  but  separately  tried,  the  wife  of 
the  one  not  on  trial  is  competent  to  testify  for  the  other.  Com.  v. 
Hanson,  2  Ash.  31.  And  also  for  the  State  against  the  other, 
though  she  may  refuse  to  answer  questions  incriminating  her  hus- 
band.    Com.  v.  Reid,  8  Phila.  385. 

Persons  jointly  indicted. —  Three  burglars  jointly  indicted  for 
murder.  On  a  separate  trial  one  may  testify  as  to  the  criminal 
concert  of  the  three  prior  to  the  crime.  Com.  v.  Biddle,  200  Pa. 
640. 

One  jointly  indicted  is  not  competent  as  a  witness  for  the  other 
on  the  latter's  separate  trial,  so  long  as  such  witness  has  not  been 
acquitted  or  convicted  himself.  Shay  v.  Com.,  36  Pa.  305;  Staup 
v.   Com.,  74  Pa.  458. 

If  one  jointly  indicted  with  others  has  been  convicted,  he  does 
not  become  a  competent  witness  against  the  others.  Kehoe  v.  Com., 
S5  Pa.  127. 

Article  109. 

competency  in  proceedings  relating  to  adultery. 

In  proceedings  instituted  in  consequence  of  adultery, 
the  parties  and  their  husbands  and  wives  are  competent 
witnesses,  provided  that  no  witness  in  any  [  ?  such]  pro- 
ceeding, whether  a  party  to  the  suit  or  not,  is  liable  to  be 
asked  or  bound  to  answer  any  question  tending  to  show 
that  he  or  she  has  been  guilty  of  adultery,  unless  such 
witness  has  already  given  evidence  in  the  same  proceeding 
in  disproof  of  his  or  her  alleged  adultery.11 

11  32  &  33  Vict.  c.  68,  s.  3.  The  word  "  such  "  seems  to  have  been 
omitted  accidentally. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  541 


AMERICAN  NOTE. 

General. 

Authority. —  Howard  v.  Brower,  37  Ohio  St.  402. 
Adultery. —  The  evidence  of  the  particeps  criminis  in  adultery  is 
to  be  received  with  caution.     Wahle  v.  Wahle,  71  111.  511. 

New    Jersey. 
See  statute.— G.  S.  1895,  "Evidence,"  5,  73. 

Pennsylvania. 

Testimony  of  husband  and  wife.     Bitner  v.  Boone,  123  Pa.  567. 

Wife's  testimony  not  admissible  against  a  codefendant  of  her 
husband.     Cornelius  v.  Hambay,  150  Pa.  364. 

See  statute. — ■  Pepper  &  Lewis'  Digest  of  Laws,  "  Criminal  Pro- 
cedure," sec.  81. 

Article  110. 

communications   during   marriage. 

No  husband  is  compellable  to  disclose  any  communica- 
tion made  to  him  by  his  wife  during  the  marriage,  and  no 
wife  is  compellable  to  disclose  any  communication  made  to 
her  by  her  husband  during  the  marriage.12 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  254;  Mc- 
Kelvey  on  Evidence,  p.  288;  Campbell  v.  Chace,  12  R.  I.  333. 

Sustaining  text. —  Seitz  v.  Seitz,  170  Pa.  St.  71;  Smied  v.  Frank. 
86  Ind.  250;  People  v.  Hullings,  83  Cal.  138;  Com.  v.  Sapp,  90  Ky. 

12  16  &  17  Vict.  c.  83,  s.  3,  and  61  &  62  Vict.  c.  36.  s.  1.  subs,  {d) .  It 
is  doubtful  whether  this  would  apply  to  a  widower  or  divorced  person, 
questioned  after  the  dissolution  of  the  marriage  as  to  what  had  been 
communicated  to  him  whilst  it  lasted. 


542  A  DIGEST  OF  [Past  IIlJ 

580;  Hitchcock  v.  Moore,  70  Mich.  112;  Hopkins  v.  Grimshaw,  165 
U.  S.  342;  Goelz  v.  Goelz,  157  111.  33;  Litchfield  v.  Merritt,  102 
Mass.  520;  Dickerrnan  v.  Graves,  6  Cush.  (Mass.)  308,  53  Am.  Dec. 
41;  Broivn  v.  Wood,  121  Mass.  137;  .Drew  v.  Tarbell,  U7  Mass. 
90;   Com.  v.  Hayes,  145  Mass.  289;   Com.  v.  Caponi,  155  Mass.  534. 

A  husband  or  wife  may  not  testify  to  conversations  which  are 
overheard  by  another.  Campbell  v.  Chace,  12  R.  I.  333.  Contra, 
Lyon  v.  Prouty,  154  Mass.  488;   Sessions  v.  Trevitt,  39  O.  St.  259. 

A  wife  may  testify  to  private  conversations,  when  the  question 
arises  upon  the  hearing  of  a  claim  in  her  favor  against  her  hus- 
band's insolvent  estate.     Spitz's  Appeal,  56  Conn.  187. 

One  who  overhears  conversations  between  husband  and  wife  may 
testify.  Gannon  v.  People,  127  111.  507;  State  v.  Gray,  55  Kan. 
135;  Com.  v.  Griffin,  110  Mass.  181;  Lyon  v.  Prouty,  154  Mass.  488; 
State  v.  Hoyt,  47  Conn.  518. 

A  wife  cannot  testify  as  to  declarations  of  her  husband.  Enos  v. 
Hunter,  4  Gilm.  211. 

A  wife  is  competent  to  testify  as  to  a  transaction  as  to  which 
she  was  the  agent  of  her  husband.  Schneider  v.  Kabsch,  91  111. 
App.  386. 

Impotency. —  A  divorced  wife  is  incompetent  to  testify  as  to  the 
impotency  of  her  former  husband.  Griffith  v.  Griffith,  162  111.  368, 
reversing  55   111.  App.  474. 

Communications  between  husband  and  wife  privileged. —  Dye  v. 
Davis,  65  Ind.  474;  Jack  v.  Russey,  8  Ind.  ISO;  Perry  v.  Randall, 
83  Ind.  143;  Stanley  v.  Montgomery,  102  Ind.  102;  Smied  v.  Frank, 
86  Ind.  250. 

Communications  include  not  only  statements  but  actions  as  well. 
Perry  v.  Randall,  83  Ind.  143. 

Where  a  husband  is  prosecuted  for  a  crime  committed  upon  the 
person  of  his  wife,  their  conversations  connected  with  the  crime  are 
not  privileged.     Doolittle  v.  State,  93  Ind.  272. 

In  a  suit  against  husband  and  wife  to  set  aside  a  conveyance  as 
being  fraudulent,  the  negotiations  between  them  are  not  privileged. 
Beit mati  v.  Hopkins,  109  Ind.  177. 

Where  the  wife  is  the  agent  of  the  husband  she  may  testify  as  to 
what  was  said  between  them  with  reference  to  such  agency.  Schmeid 
v.  Frank,  86  Ind.  250. 

Neither  party  to  the  marriage  relation  can  disclose  communica- 
tions made  during  the  relation  and  this  bar  exists  after  the  relation 
is  terminated.     Dye  v.  Davis,  65  Ind.  474;   Jack  v.  Russey,  8    [nd. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  543 

180;  Perry  v.  Randall,  S3  Ind.  143;  Stanley  v.  Montgomery,  102 
Ind.  102. 

A  husband  is  not  a  competent  witness  after  the  death  of  his  wife, 
on  the  question  of  whether  or  not  he  abandoned  her.  Dye  v.  Davis, 
05  Ind.  474. 

Communications  between  husband  and  wife  are  privileged  even 
after  the  death  of  the  husband.  Stanley  v.  Montgomery,  102  Ind. 
102;  Turner  v.  Cook,  36  Ind.  129. 

A  husband  or  wife  may  testify  as  to  facts  learned  by  them  through 
the  marital  relation.     Poison  v.  State,  137  Ind.  519. 

As  to  the  evidence  of  husband  and  wife  in  forgery,  see  Beyerline 
v.  State,  147  Ind.  125. 

A  wife  may  testify  concerning  misrepresentations  and  acts  of 
undue  influence.  De  Ruiter  v.  De  Ruiter,  28  Ind.  App.  9,  62  N.  E. 
100. 

In  presence  of  stranger. —  Conversations  between  husband  and 
wife  in  the  presence  of  others  are  not  privileged.  Reynolds  v.  State, 
147  Ind.  3. 

In  an  action  of  criminal  conversation,  the  husband  may  testify  as 
to  statements  by  the  wife  in  the  presence  of  the  defendant.  Mainard 
v.  Reider,  2  Ind.  App.  115. 

Privileged  communications. —  In  a  suit  by  the  husband  for  the 
alienating  of  his  wife's  affections  he  cannot  testify  as  to  conversa- 
tions that  took  place  between  his  wife  and  himself  in  the  absence  of 
the  defendant  without  the  consent  of  his  wife,  such  communications 
being  privileged.     McEenzie  v.  Lautenschlager,  113  Mich.   171. 

After  death  of  others. —  A  husband  cannot  testify  to  confidential 
communications,  even  after  the  death  of  the  wife.  Maynard  v.  Vin- 
ton, 59  Mich.   139. 

Consent. —  A  husband  or  wife  may  testify  to  confidential  commu- 
nications with  the  consent  of  the  other.  Jenne  v.  Marble,  37  Mich. 
319;  Hunt  v.  Eaton,  55  Mich.  362. 

New    Jersey. 

Sustaining  text. —  Clawson  V.  Riley,  34  N.  J.  Eq.  348 ;  Rusling  v. 
Bray,  38  N.  J.  Eq.  398;  Cray  v.  Gray,  39  N.  J.  Eq.  512. 

When  husband  and  wife  are  joint  trustees,  their  communications 
in  relation  to  the  trust  property  are  not  privileged.  Wood  v.  Chet- 
wood,  27  N.  J.  Eq.  311. 

Statutory  rule.—  G.  S.  1895,  "  Evidence,"  5. 


544  A  DIGEST  OF  [Paht  III. 

Maryland. 

Cut  a  wife  is  competent  in  a  suit  to  set  aside  a  marriage  contract 
with  her  husband  on  the  ground  of  forgery.  Classen  v.  Classen, 
57   Md.  510. 

Statute.—  P.  G.  L.  1888,  art.  35,  sec.  3. 

Pennsylvania. 

Sustaining  text. —  Seitz  v.  Seitz,  170  Pa.  71. 

Confidential  communications  not  admissible,  but  conversations  as 
to  business  affairs  in  which  third  parties  take  part  are  admissible. 
Robb's  Appeal,  98  Pa.  501. 

After  the  husband's  death  the  wife  is  incompetent  as  to  confiden- 
tial matters.     Hitner's  Appeal,  54  Pa.   110. 

A  widow  is  competent  in  a  suit  between  her  husband's  executor 
and  a  stranger  as  to  all  matters  not  learned  in  consequence  of  the 
marriage  relation.     Cornell  v.  Vanartsdalen,  4  Pa.  364. 

Widow  is  allowed  to  testify  as  to  a  verbal  agreement  with  her 
husband,  not  confidential.     Peiffer  v.  Lytle,  58  Pa.  386. 

A  wife  may  testify  in  a  divorce  proceeding  as  to  statements  and 
admissions  by  her  husband  that  he  had  committed  adultery.  Seitz 
v.  Seitz,  170  Pa.  71. 

See  statutory  rule. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Criminal 
Procedure,"  sec  82 ;  "  Witnesses,"  sec.  10. 

Article  111.* 

judges  and  advocates  privileged  as  to  certain 
questions. 

It  is  doubtful  whether  a  judge  is  compellable  to  testify 
as  to  anything  which  came  to  his  knowledge  in  court  as 
such  judge.13  It  seems  that  a  barrister  cannot  be  com- 
pelled to  testify  as  to  what  he  said  in  court  in  his  character 
of  a  barrister.14 

*  See  Note  XIJI. 
13  R.  v.  Gazard,  1838,  8  C.  &  P.  595. 
H  Curry  v.  Walter,  1796,  1  Esp.  456. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  545 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  600;  17  Am.  &  Eng. 
Encyclopaedia  of  Law  (2d  ed.),  p.  724  et  seq.;  Weeks  on  Attorneys 
(2d  ed.),  sees.  124,  125. 

Judges. —  Spalding  v.  Lowe,  56  Mich.  366 ;  Zitske  v.  Goldberg, 
38  Wis.  216;  State  v.  Waterman,  87  la.  255;  Highberger  v.  Stiffler, 
21  Md.  338;  Baker  v.  Thompson,  89  Ga.  486;  Wright  v.  McCamp- 
bell,  75  Tex.  644;  Barrett  v.  James,  30  S.  C.  329;  Allen's  Appeal, 
69  Conn.  709. 

Whether  to  prove  the  points  decided,  the  judge  is  a  competent 
witness,  qucere.  Supples  v.  Cannon,  44  Conn.  430,  and  reporter's 
note. 

Justices  of  the  peace  may  testify  on  appeal  as  to  what  took  place 
before  them.  State  v.  Van  Winkle,  80  la.  15;  State  v.  Duffy,  57 
Conn.  525. 

Where,  on  appeal,  the  question  of  the  interest  of  the  judge  arises, 
he  is  a  competent  witness  on  that  issue.  Sigourney  v.  Sibley,  21 
Pick.   (Mass.)    101,  32  Am.  Dec.  248. 

Auditors,  arbitrators,  etc. —  Packard  v.  Reynolds,  100  Mass.  153; 
Schmidt  v.  Glade,  126  111.  485;  Calvert  v.  Friebus,  48  Md.  44;  Rob- 
inson v.  Shanks,  118  Ind.  125. 

»  Attorney. —  French  v.  Hall,  119  U.  S.  152:  Freeman  v.  Fogg,  82 
Me.  408;  Follansbee  v.  Walker,  72  Pa.  St.  228;  Branson  v.  Caru- 
thers,  49  Cal.  374;  Connolly  v.  Straiv,  53  Wis.  645;  Carrington  v. 
Holabird,  17   Conn.   530. 

Generally  now  attorneys  are  competent  witnesses.  Weeks  on  At- 
torneys   (2d  ed.),  sees.  124,   125. 

The  fact  that  one  is  counsel  in  a  case  and  engaged  for  a  contin- 
gent fee  does  not  render  him  incompetent  as  a  witness.  Thon  v. 
Rochester  R.  R.  Co.,  83  Hun,  443. 

Arbitrator. —  Arbitrators  are  competent  witnesses.  Spurck  v. 
Crook,  19  111.  415;  Stone  v.  Atwood,  28  111.  30;  Claycomb  v.  Butler, 
36  111.  100;  Schmidt  v.  Glade,  126  111.  485. 

New    Jersey. 

A  justice  may  testify  as  to  proceedings  before  him.  Brown  V. 
Elliott,  17  N.  J.  Eq.  353;  Dilts  v.  Parke,  1  South.  219. 

35 


546  A  DIGEST  OF  [Pabt  III. 

Maryland. 

Judges.—  Highberger  v.  Stiffler,  21  Md.  338. 

Auditors,  arbitrators,  etc. —  Calvert  v.  Friebus,  48  Md.  44. 

Pennsylvania. 

Judges. —  Hibbs  v.  Blair,  14  Pa.  413;  Graham  v.  Graham,  9  Pa. 
254;   Converse  v.  Colton,  49  Pa.  346. 

Notes  taken  by  a  judge  during  a  trial  as  evidence.  Schall  v. 
Miller,  5  Whart.   156. 

Attorney.—  Follansbee  v.  Walker,  72  Pa.  228. 

Article  112. 

evidence  as  to  affairs  of  state. 

"No  one  can  be  compelled  to  give  evidence  relating  to 
any  affairs  of  State,  or  as  to  official  communications  be- 
tween public  officers  upon  public  affairs,  unless  the  officer 
at  the  head  of  the  department  concerned  permits  him  to  do 
so,15  or  to  give  evidence  of  what  took  place  in  either  House 
of  Parliament,  without  the  leave  of  the  House,  though  he 
may  state  that  a  particular  person  acted  as  Speaker.16 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  250,  251  j 
McKelvey  on  Evidence,  p.  301 ;  Oliver  v.  Pate,  41  Ind.  132,  141 ;  U.  8. 
v.  Moses,  4  Wash.  C.  C.  726;  Worthington  v.  Scribner,  109  Mass. 
487,  488,  12  Am.  Rep.  736;  Appeal  of  Hartranft,  85  Pa.  St.  433; 
Thompson  v.  German.,  etc.,  R.  Co.,  22  N.  J.  Eq.  171.  See  also  Totten 
v.  U.  S.,  92  U.  S.  105 ;  U.  S.  v.  Trumbull,  48  Fed.  Eep.  194. 

New    Jersey. 
Authority. —  Thompson  v.  Gey-man,  etc.,  B.  Co.,  22  N.  J.  Eq.  171. 

Pennsylvania. 

Authority. —  Appeal  of  Hartranft,  85  Pa.  433. 

15  Beatson  v.  Skene,  1S60,  5  H.  &  N.  838. 

16  Chubb  v.  Salomons,  1852,  3  Car.  &  Kir.  77;  Plunkett  v.  Cobbett, 
1804,  5  Esp.  136. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  547 

Article  113. 
information  as  to  commission  of  offences. 

In  cases  in  which  the  government  is  immediately  con- 
cerned no  witness  can  be  compelled  to  answer  any  question, 
the  answer  to  which  would  tend  to  discover  the  names  of 
persons  by  or  to  whom  information  was  given  as  to  the 
commission  of  offences. 

A  criminal  prosecution  by  the  Director  of  Public  Prose- 
cutions is  a  public  prosecution,  and  the  Director  of  Public 
Prosecutions  cannot  be  required  to  say  from  whom  he 
acquired  information  or  what  it  was.17 

In  ordinary  criminal  prosecutions  it  is  for  the  judge  to 
decide  whether  the  permission  of  any  such  question  would 
or  would  not,  under  the  circumstances  of  the  particular 
case,  be  injurious  to  the  administration  of  justice.18 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  250;  Mc- 
Kelvey  on  Evidence,  p.  301;  Yogel  v.  Gruaz,  110  U.  S.  311;  People  v. 
Laird,  102  Mich.  135;  State  v.  Loper,  16  Me.  293;  U.  S.  v.  Moses,  4 
Wash.  C.  C.  (U.  S.)  726;  Worthington  v.  Scribner,  109  Mass.  487, 
488,  12  Am.  Rep.  736. 

All  communications  in  regard  to  the  commission  of  offenses  made 
to  public  officers,  with  a  view  to  the  prosecution  or  detention  of 
suspected  offenders,  are  privileged,  and  neither  the  communications 
themselves,  nor  the  name  of  the  person  who  made  them,  may  be 
divulged  without  the  consent  of  said  person.  Oliver  v.  Pate,  41 
Ind.  132,  141.     See   also   State  v.  Van  Buskirk,  59  Ind.  384. 

New    Jersey. 

Authority. —  Patton  v.  Freeman,  Coxe,  113. 

17  Marks  v.  Bey f us,  \_i 890],  25  Q.  B.  D.  494. 

18  R.  v.  Hardy,  1794.  24  S.  T.  811:  A.  O.  v.  Bryant,  1846,  15  M.  & 
W.  169;  R.  v.  Richardson,  1863,  3  F.  &  F.  693. 


548  A  DIGEST  OF  [Pabt  III. 

Article  114. 

competency  of  jurors. 

A  petty  juror  may  not 19  and  it  is  doubtful  whether  a 
grand  juror  may  20  give  evidence  as  to  what  passed  between 
the  jurymen  in  the  discharge  of  their  duties.  It  is  also 
doubtful  whether  a  grand  juror  may  give  evidence  as  to 
what  any  witness  said  when  examined  before  the  grand 
jury. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  901  et  seq.;  1  Green- 
leaf  on  Evidence    (15th  ed.),  sees.  252,  252a. 

Petty  jurors. —  State  v.  Harrison,  36  W.  Va.  729;  Follansbee  v. 
Walker,  74  Pa.  St.  306;  Swails  v.  Cissna,  61  la.  693;  White  v.  State, 
73  Miss.  50;  State  v.  Vari,  35  S.  C.  175;  Studley  v.  Rail,  22  Me.  198, 
201;  State  v.  Pike,  65  Me.  Ill;  Eannum  v.  Belchertoum,  19  Pick. 
(Mass.)  311,  313;  Com.  v.  White,  147  Mass.  76;  Woodward  v.  Lea- 
vitt,  107  Mass.  453;  Rowe  v.  Carney,  139  Mass.  41.  See  Mattox  v. 
U.  S.,  146  U.  S.  140. 

The  testimony  of  jurors  is  not  admissible  to  impeach  their  verdict 
as  by  showing  their  misconduct.  Taylor  v.  Garnett,  110  Ind.  166; 
Sanitary  Dist.  v.  Cullerton,  147  111.  385;  People  v.  Stimer,  82  Mich. 
17;  State  v.  Wood,  124  Mo.  212;  People  v.  Kloss,  115  Cal.  567;  Shep- 
herd v.  Camden,  82  Me.  535;  Mead  v.  Smith,  16  Conn.  346;  Bridge- 
water  v.  Plymouth,  97  Mass.  382.  But  it  is  competent  to  prove  the 
misconduct  of  parties  with  reference  to  them.  Johnson  v.  Witt,  138 
Mass.  79;  Peck  v.  Brewer,  48  111.  54;  People  v.  Hunt,  59  Cal.  430; 
Clement  v.  Spear,  56  Vt.  401;  State  v.  Rush,  95  Mo.  199;  Chicago, 
etc.,  R.  Co.  v.  McDaniel,  34  Ind.  166;  Eeffron  v.  Gallupe,  55  Me.  565. 

19  Taise  v.  Delaval,  1785,  1  T.  R.  11;  Burgess  v.  Langley,  1843, 
5  M.  &  G.  722. 

20  1  Ph.  Ev.  140;  Taylor,  s.  943.  ., 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  549 

Grand  jurors. —  Grand  jurors  may  testify  as  to  what  particular 
witnesses  said.  State  v.  Benner,  64  Me.  267,  283;  State  v.  Coffee, 
56  Conn.  399. 

It  may  be  shown  by  the  testimony  of  grand  jurors  that  twelve 
did  not  concur  in  finding  the  indictment.  Low's  Case,  4  Me.  439, 
444.  Contra,  State  v.  Fassett,  16  Conn.  457,  466.  See  also  on  grand 
jurors.  U.  S.  v.  Farrington,  5  Fed.  Rep.  343;  Gitchell  v.  People, 
146  111.  175;  Com.  v.  Scoicden,  92  Ky.  120;  Loveland  v.  Cooley,  59. 
Minn.  259;  State  v.  Johnson,  115  Mo.  480. 

When  an  effort  is  made  to  impeach  a  witness  by  showing  that  he 
told  a  different  story  before  the  grand  jury,  the  grand  jurors  are 
competent  witnesses.  State  v.  Benner,  64  Me.  267;  State  v.  Wood, 
53  N.  H.  484;  Gordon  v.  Com.,  92  Pa.  St.  216;  Burdick  v.  Hunt,  43 
Ind.  381;  Bressler  v.  People,  117  111.  422;  State  v.  Thomas,  99  Mo. 
235;  Pellum  v.  State,  89  Ala.  28. 

In  an  action  for  malicious  prosecution,  one  who  was  present  may 
testify  as  to  the  evidence  adduced  before  the  grand  jury.  Hunter 
v.  Randall,  69  Me.  183.     Contra,  Kennedy  v.  Holladay,  105  Mo.  24. 

Grand  jurors  may  testify  as  to  whether  or  not  one  appeared  be- 
fore them  as  a  witness.  Com.  v.  Hill,  11  Cush.  (Mass.)  137;  People 
v.  Northey,  77  Cal.  619. 

On  motion  for  a  new  trial,  the  testimony  of  a  juror  is  not  admis- 
sible to  impeach  the  verdict.  Williams  v.  Montgomery,  60  N.  Y. 
648;  Dalrymple  v.  Williams,  63  N.  Y.  361. 

New    Jersey. 

Authorities. —  State  v.  Powell,  2  Hal.  244;  Wallace  v.  Coil,  4  Zab. 
600. 

Petty  jurors — Hutchinson  v.  Coal  Co.,  36  N.  J.  L.  24;  Kennedy 
V.  Kennedy,  18  N.  J.  L.  450  (to  show  verdict  incorrectly  returned)  ; 
Peters  v.  Fogarty,  55  N.  J.  L.  386. 

Petty  juror  incompetent  to  testify  as  to  what  was  said  in  the 
jury-room  or  while  viewing  premises.  State  v.  Vansciver,  7  N.  J. 
L.  J.  268. 

Testimony  of  jurors  is  admissible  to  show  that  the  foreman  mis- 
stated their  verdict.    Peters  v.  Fogarty,  55  N.  J.  L.  386. 

Grand  jurors.—  Wi Ison  v.  Hill,  13  N.  J.  Eq.  143. 

Grand  juror  not  competent  to  prove  that  a  witness  testified  other- 
wise before  the  grand  jury.    Imlay  v.  Rogers,  2  Hal.  347. 


550  A  DIGEST  OF  [Past  III. 

Maryland. 

Grand  jurors. —  Grand  jurors  cannot  testify  as  to  their  reasons  for 
the  action  they  took.     Owens  v.  Owens,  81  Md.  518. 

A  grand  juror  is  not  permitted  to  testify  as  to  the  individual 
action  of  any  member  of  the  jury  in  regard  to  a  matter  before 
them.     Elbin  v.  Wilson,  33  Md.  135. 

A  grand  juror  may  testify  that  a  certain  witness'  testimony  be- 
fore the  petty  jury  is  different  from  that  he  gave  before  the  grand 
jury.     Kirk  v.  Garrett,  84  Md.  383. 

Testimony  of  grand  jurors  is  competent  to  prove  perjury  before 
them.     Izer  v.  State,  77  Md.   110. 

Petty  jurors. —  A  juror  is  not  a  competent  witness  to  impeach  the 
verdict,  whether  as  to  misbehavior  or  mistake.  Bosley  v.  Ches.  Ins. 
Co.,  3  G.  &  J.  450;  Browne  v.  Browne,  22  Md.  103. 

A  petty  juror  is  not  a  competent  witness  as  to  the  motives  upon 
which  a  verdict  was  reached.     Ford  v.  State,  12  Md.  514. 

Pennsylvania. 

Petty  jurors. —  Follansbee  v.  Walker,  74  Pa.  306. 

A  juror  is  a  competent  witness  in  a  criminal  case,  but  one  who 
may  become  a  witness  ought  not  be  put  on  the  jury.  Hoivser  v. 
Com.,  51  Pa.  332. 

Grand  jurors. —  When  an  effort  is  made  to  impeach  a  witness  by 
showing  that  he  told  a  different  story  before  the  grand  jury,  the 
grand  jurors  are  competent  witnesses.     Gordon  v.  Com.,  92  Pa.  216. 

In  malicious  prosecution,  a  member  of  the  grand  jury  is  com- 
petent to  prove  who  was  the  prosecutor.  Huidekoper  v.  Cotton,  3 
Watts,  56. 

Article  115.* 

professional,  communications. 

~No  legal  adviser  is  permitted,  whether  during  or  after 
the  termination  of  his  employment  as  such,  unless  with  his 
client's  express  consent,  to  disclose  any  communication, 
oral  or  documentary,  made  to  him  as  such  legal  adviser,  by 

*  See  Note  XLIII. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  501 

or  on  behalf  of  his  client,  during,  in  the  course,  and  for 
the  purpose  of  his  employment,  whether  in  reference  to 
any  matter  as  to  which  a  dispute  has  arisen  or  otherwise, 
•or  to  disclose  any  advice  given  by  him  to  his  client  during, 
in  the  course,  and  for  the  purpose  of  such  employment.  It 
is  immaterial  whether  the  client  is  or  is  not  a  party  to  the 
action  in  which  the  question  is  put  to  the  legal  adviser. 
This  article  does  not  extend  to — 

(1)  Any  such  communication  as  aforesaid  made  in 
furtherance  of  any  criminal  purpose;  whether  such  pur- 
pose was  at  the  time  of  the  communication  known  to  the 
professional  adviser  or  not ;  21 

(2)  Any  fact  observed  by  any  legal  adviser,  in  the 
course  of  his  employment  as  such,  showing  that  any  crime 
or  fraud  has  been  committed  since  the  commencement  of 
his  employment,  whether  his  attention  was  directed  to 
such  fact  by  or  on  behalf  of  his  client  or  not; 

(3)  Any  fact  with  which  such  legal  adviser  became  ac- 
quainted otherwise  than  in  his  character  as  such. 

The  expression  "  legal  adviser  "  includes  barristers  and 
solicitors,22  their  clerks,23  and  interpreters  between  them 

21  R.  v.  Cox  &  Railton,  1884,  14  Q.  B.  D.  153.  The  judgment  in 
this  case  is  that  of  ten  judges  in  the  Court  for  Crown  Cases  Reserved, 
and  examines  minutely  all  the  cases  on  the  subject.  These  cases  put 
the  rule  on  the  principle,  that  the  furtherance  of  a  criminal  purpose 
can  never  be  part  of  a  legal  adviser's  business.  As  soon  as  a  lega] 
adviser  knowingly  takes  part  in  preparing  for  a  crime,  he  ceases  to 
act  as  a  lawyer  and  becomes  a  criminal  —  a  conspirator  or  accessor} 
as  the  ease  may  be. 

22  Wilson  v.  Raslall,  1792,  4  T.  R.  753.    As  to  interpreters,  lb.  756, 

23  Taylor  v.  Foster,  1825,  2  C.  &  P.  195;  Foote  v.  Hayne,  1824, 
1  C.  &  P.  545.    Qucere,  whether  licensed  conveyancers  are  within  the 


552  A  DIGEST  OF  [Pabt  III. 

and  their  clients.  It  does  not  include  officers  of  a  cor- 
poration through  whom  the  corporation  has  elected  to  make 
statements.24 

Illustrations. 

(a)  A,  being  charged  with  embezzlement,  retains  B,  a  barrister,  to 
defend  him.  In  the  course  of  the  proceedings,  B  observes  that  an 
entry  has  been  made  in  A's  account  book,  charging  A  with  the  sum 
said  to  have  been  embezzled,  which  entry  was  not  in  the  book  at  the 
commencement  of  B's  employment. 

This  being  a  fact  observed  by  B  in  the  course  of  his  employment, 
showing  that  a  fraud  has  been  committed  since  the  commencement 
of  the  proceedings,  is  not  protected  from  disclosure  in  a  subsequent 
action  by  A  against  the  prosecutor  in  the  original  case  for  malicious 
prosecution.25 

(6)  If  a  legal  adviser  witnesses  a  deed,  he  must  give  evidence  as 
to  what  happened  at  the  time  of  its  execution.26 

(c)  A  retains  B,  an  attorney,  to  prosecute  C  (whose  property  he 
had  fraudulently  acquired)  for  murder,  and  says,  "It  is  not  proper 
for  me  to  appear  in  the  prosecution  for  fear  of  its  hurting  me  in  the 
cause  coming  on  between  myself  and  him ;  but  I  do  not  care  if  I  give 
£10,000  to  get  him  hanged,  for  then  I  shall  be  easy  in  my  title  and 
estate."    This  communication  is  not  privileged.27 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  237-246r 
261;  1  Wharton  on  Evidence,  sees.  576-594;  Weeks  on  Attorneys- 
at-Law  (2d  ed.),  chap.  8;  Com.  Life  Ins.  Co.  v.  Schaefer,  94  U.  S. 
457 ;  People  v.  Barker,  56  111.  299 ;  Sweet  v.  Owens,  109  Mo.  1 ;  Mc- 
Lellan  v.  Longfellow,  32  Me.  494,  54  Am.  Dec.  599;  Snow  v.  Gould, 

rule?  Parke,  B.,  in  Turquand  v.  Knight,  1836,  2  M.  &  W.  at  p.  100r 
thought  not.    Special  pleaders  would  seem  to  be  on  the  same  footing. 

24  Mayor  of  Stcansea  v.  Quirk,  1879,  5  C.  P.  D.  106.  Nor  pur- 
suivants of  the  Herald's  College;  Slade  v.  Tucker.  1880,  14  Ch.  Div. 
824. 

25  Brown  v.  Foster,  1857,  1  H.  k  N".  736. 
MCraiccour  v.  Salter,  1881,  18  Ch.  Div.  pp.  35-6. 
27  Annesley  v.  Anglesea,  1743,  17  S.  T.  1223-44. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  553 

74  Me.  540,  43  Am.  Rep.  604 ;  Thome  v.  Kilborne,  28  Vt.  750,  67  Am. 
Dec.  742;  Earle  v.  Grant,  46  Vt.  113;  Wade  v.  Ridley,  87  Me.  368; 
Brown  v.  Butler,  71  Conn.  583;  Eigbee  v.  Dresser,  103  Mass.  523; 
Blount  v.  Kimpton,  155  Mass.  378;  Anonymous,  8  Mass.  370;  Foster 
v.  #aM,  12  Pick.  (Mass.)  89;  Eatton  v.  Robinson,  14  Pick.  (Mass.) 
416;  Barnes  v.  Harris,  7  Cush.   (Mass.)    576. 

A  lawyer  acting  as  a  mere  scrivener  is  not  within  the  rule.  Han- 
Ion  v.  Doherty,  109  Ind.  37;  Smith  v.  Long,  106  111.  485;  Stallings 
v.  Hullum,  79  Tex.  421;  Childs  v.  Merrill,  66  Vt.  302;  Todd  v.  Mtm- 
son,  53  Conn.  579.    See  Carter  v.  Wesf,  93  Ky.  211. 

He  must  be  acting  as  an  attorney.     Coon  v.  Swan,  30  Vt.  6. 

Law  students  who  are  not  clerks  are  not  within  the  rule.  Schub- 
kagel  v.  Dierstein,  31  Pa.  St.  46;  Holman  v.  Kimball,  22  Vt.  555; 
Barnes  v.  Harris,  7  Cush.  (Mass.)  576.  Nor  those  supposed  to  be 
lawyers,  who  in  fact  are  not.  Barnes  v.  Harris,  7  Cush.  (Mass.)  576; 
Halves  v.  State,  88  Ala.  37. 

The  rule  does  not  apply  to  suits  involving  the  construction  of 
the  client's  will.     Doherty  v.  O'Callaghan,   157   Mass.   90. 

The  rule  does  not  exclude  the  testimony  as  to  a  public  fact,  al- 
though it  would  not  have  been  learned  but  for  the  employment. 
Com.  v.  Bacon,  135  Mass.  521. 

The  fact  that  the  client  takes  the  stand  does  not  constitute  con- 
sent to  the  attorney  to  testify.  Montgomery  v.  Pickering,  116 
Mass.  227. 

Where  a  client  requests  an  attorney  to  obtain  information  as  to 
facts,  with  reference  to  an  estate  in  settlement,  the  communication 
is  not  privileged.  Turner's  Appeal,  72  Conn.  319.  See  also  Allen  v. 
Hartford  Life  Ins.  Co.,  72  Conn.  696 ;  Goddard  v.  Gardner,  28  Conn. 
175. 

Waiver. —  The  client  may  waive  his  right  and  allow  the  attorney 
to  testify.  Hunt  v.  Blackburn,  128  U.  S.  464;  Passmore  v.  Pass- 
more's  Estate,  50  Mich.  626;  Sleeper  v.  Abbott,  60  N.  H.  162. 

Learned  from  outside  sources. —  Daniel  v.  Daniel,  39  Pa.  St.  191; 
Swaim  v.  Humphreys,  42  111.  App.  370 ;  Jennings  v.  Sturdevant,  140 
Ind.  641;  Theisen  v.  Dayton,  82  la.  74;  State  v.  Fitzgerald,  68  Vt. 
125;  Brady  v.  State,  39  Neb.  529.  See  Carroll  v.  Sprague,  59  Cal. 
655;  Turner's  Estate,  167  Pa.  St.  609;  Hughes  v.  Boone,  102  N.  C. 
137. 

Criminal  purpose. —  Whether  an  attorney  to  whom  a  criminal 
project   has   been   confided   by   his    client   may    divulge   it,    qucere. 


554  A  DIGEST  OF  [Pabt  III. 

People  v.  Van  Alstine,  57  Mich.  69;  Orman  v.  State,  22  Tex.  App. 
604;  State  v.  Kidd,  89  la.  54;  Eamil  v.  England,  50  Mo.  App.  333; 
State  v.  Barrows,  52  Conn.  325. 

Witnesses.-  A  person  who  overhears  may  testify.  People  v.  Bu- 
chanan, 145  N.  Y.  1. 

The  communication  must  relate  to  his  professional  employment. 
Howell  v.  Van  Buren,  77  Hun,  569;  Rosseau  v.  Blean,  131  N.  Y.  177. 

An  attorney  may  testify  that  he  acted  as  such.  Hampton  v.  Boy- 
Ian,  46  Hun,  151.  And  for  whom.  Mulford  v.  Muller,  3  Abb.  Dec. 
330. 

A  communication  in  the  presence  of  the  adverse  party  is  not  within 
the  rule.     Hurlbut  v.  Hurlbut,  128  N.  Y.  420. 

Clerks,  etc. —  Communications  to  lawyers'  employees  are  within 
the  rule.  Jackson  v.  French,  3  Wend.  337;  Sibley  v.  Waffle,  16  N.  Y. 
180. 

Testimony  as  to  existence  of  relation. —  An  attorney  may  testify 
as  to  the  existence  of  the  relation  of  attorney  and  client.  Lein- 
decker  v.  Waldron,  52  111.  283. 

Who  is  an  attorney. —  Communications  to  be  privileged  must  be 
made  to  an  attorney  as  an  attorney.     Borum  v.  Fouts,  15  Ind.  50. 

A  lawyer  acting  as  a  mere  scrivener  is  not  within  the  rule.  Han- 
Ion  v.  Doherty,  109  Ind.  37;  Borum  v.  Fouts,  15  Ind.  50;  Thomas 
v.  Griffen,  1  Ind.  App.  457. 

A  fee  is  not  necessary  to  the  privilege  of  an  attorney.  Reed  v. 
Smith,  2  Ind.  160. 

Communications  to  a  prosecuting  attorney  with  reference  to 
crimes  are  privileged.  Oliver  v.  Pate,  43  Ind.  132;  State  v.  Van 
Buskirk,  59  Ind.  384. 

Communications  made  to  an  attorney  before  his  employment  are 
not  protected.     Jennings  v.  Sturdevant,  140  Ind.  641. 

Communications  to  a  notary  are  not  privileged.  Lukin  v.  Hal- 
derson,  24  Ind.  App.  645. 

By  testator. —  Communications  by  a  testator  to  his  attorney,  with 
reference  to  hi3  will,  are  not  protected  after  the  former's  death. 
Kern  v.  Kern,  154  Ind.  29,  modifying  Gurley  v.  Park,  135  Ind.  440; 
McDonald  v.  McDonald,  142  Ind.  55. 

In  will  contests,  the  attorney  may  testify  as  to  the  communica- 
tions of  his  client,  the  testator.    Pence  v.  Waugh,  135  Ind.  143. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  555 

In  presence  of  adverse  party. —  Where  a  communication  to  an  at- 
torney is  in  the  presence  of  the  adverse  party  it  is  not  privileged. 
Hanlon  v.  Doherty,  109  Ind.  37. 

New    Jersey. 

Waiver. —  Client  may  waive  the  privilege.  Sayre  v.  Sayre,  2 
Green,  487. 

Communications  to  attorney  not  privileged  when  he  is  in  the 
employ  of  both  parties  as  to  the  matter  communicated.  Gulick  v. 
Uulick,  39  N.  J.  Eq.  516. 

Fraud  and  crime. —  An  attorney  is  a  competent  witness  as  to  mat- 
ters confided  to  him  by  his  client  when  the  latter  consults  him  with 
a  criminal  or  fraudulent  object  in  view,  whether  the  attorney  is  a 
particeps  criminis  or  not.     Hattheivs  v.  Hoagland,  48  N.  J.  Eq.  455. 

Presence  of  third  person. —  Communications  between  a  client  and  a 
third  person  in  the  presence  of  the  attorney  are  not  privileged. 
Carr  v.  Weld,  19  N.  J.  Eq.  319;  Roper  v.  State,  58  N.  J.  L.  420. 

Maryland. 

Authorities. —  Salmon  v.  Clagett,  3  Bland,  125. 

The  rule  applies  even  though  the  client  is  not  a  party  to  the  suit 
in  question.     Hodges  v.  Mullikin,  1  Bland,  503. 

A  letter  from  the  client  to  the  attorney  with  reference  to  bringing 
suit  is  a  privileged  communication.  Hunter  v.  Van  Bomhorst,  1 
Md.  504. 

Communications  in  regard  to  office  business  must  be  no  more 
divulged  by  the  attorney  than  if  made  in  relation  to  a  pending  suit. 
Crane  v.  Barkdoll,  59  Md.  534  (drawing  deeds)  ;  Chew  v.  Bank,  2 
Md.  Ch.  231    (drawing  will). 

A  lawyer's  testimony  that  he  brought  a  suit,  recovered  judgment, 
collected  the  amount  and  paid  it  to  one  to  whom  his  client  had 
assigned  it  is  not  within  the  privilege.  Fulton  v.  Maccracken,  18 
Md.  528. 

Waiver  of  privilege. —  The  privilege  is  the  client's  and  he  may 
waive  it  and  make  the  attorney  a  competent  witness.  Chase's  Case, 
1  Bland,  206. 


556  A  DIGEST  OF  [Pabt  III. 

Pennsylvania. 

See  statute. —  Pepper  &  Lewis'  Digest  of  Laws,  "Criminal  Pro 
eedure,"  sec.  83;   "Witnesses,"  sec.   13. 

An  attorney  is  not  competent  to  testify  to  confidential  communi- 
cations between  himself  and  his  client.  Heister  v.  Davis,  3  Yeates, 
4;  Beltzhoover  v.  Blackstock,  3  Watts,  20;  Hill's  Estate,  9  Phila. 
355;  Paxton  v.  Steckel,  2  Pa.  93;  Moore  v.  Bray,  10  Pa.  519;  Miller 
v.  Weeks,  22  Pa.  89. 

Presence  of  third  party. —  Communications  in  the  presence  of  a 
third  party  are  not  privileged.     Hummell  v.  Kistner,   182  Pa.   210. 

Communications  made  in  the  presence  of  the  opposite  party. 
Goodwin  Co.'s  Appeal,  117  Pa.  514. 

An  attorney  may  testify  as  to  an  agreement  made  in  open  court 
by  the  parties  and  their  counsel,  as  it  is  not  confidential.  Kramer 
V.  Eister,  187  Pa.  227;  Levers  v.  Van  Buskirk,  4  Pa.  309. 

Matters  not  privileged. —  Privilege  of  an  attorney  extends  only  to 
confidential  communications.  The  mere  fact  of  his  employment  as- 
attorney  is  not  privileged.     Sargent  v.  Johns,  20G  Pa.  386. 

An  attorney  may  testify  as  to  communications  of  his  client  not 
made  by  virtue  of  their  relationship  as  attorney  and  client.  Beaton 
v.  Findlay,  12  Pa.  304;  Beeson  v.  Beeson,  9  Pa.  279. 

An  attorney  is  competent  to  testify  as  to  his  client's  mental 
capacity  on  an  issue  devisavit  vel  non.  Daniel  v.  Daniel,  39  Pa. 
191. 

When  the  attorney  is  interested  jointly  with  the  client  in  the 
matter  communicated,  such  communication  is  not  privileged.  Jeanes 
v.   Fridenburgh,  5  Penn.  L.  J.  65. 

Where  several  employ  an  attorney  concerning  the  same  business, 
communications  to  him  by  them  are  not  privileged  inter  se9e.  Seip's 
Estate.  163  Pa.  423. 

Learned  from  outside  sources. —  Daniel  v.  Daniel,  39  Pa.  St.  191; 
See  Turner's  Estate.  167  Pa.  609.  ■ 

Others  than  lawyers. —  Law  students  who  are  not  clerks  are  not 
within  the  rule.     Schubkagel  v.  Dierstein,  131  Pa.  46. 

A  conveyancer  is  not  privileged.  Matthews'  Estate,  1  Phila.  292; 
fif.  C,  5  Clark.   149. 

Question  for  the  court. —  The  attorney  is  not  the  judge  as  tc* 
whether  a  communication  is  privileged;  that  is  for  the  trial  court. 
Jeanes  v.  Fridenberg,  3  Clark,  199. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  557 

Article  116. 

confidential  communications  with  legal  advisees. 

"No  one  can  be  compelled  to  disclose  to  the  Court  any 
communication  between  himself  and  his  legal  adviser, 
which  his  legal  adviser  could  not  disclose  without  his  per- 
mission, although  it  may  have  been  made  before  any  dis- 
pute arose  as  to  the  matter  referred  to;28  but  communica- 
tions between  a  third  party  and  a  legal  adviser  are  not 
protected  unless  the  third  party  is  acting  as  the  agent  of 
the  person  seeking  advice,  or  the  communications  are  made 
in  contemplation  of  litigation,  or  for  the  purpose  of  giving 
advice  or  obtaining  evidence  with  reference  to  it.29 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  240, 
240a;  Weeks  on  Attorneys-at-Lavv   (2d  ed.),  sec.  162. 

First  paragraph  of  text.  Barker  v.  Kuhn,  38  la.  392;  Swenk  v. 
People,  20  111.  App.  Ill;  Verdelli  v.  Gray's  Harbor  Co.,  115  Cal.  517; 
Duttenhofer  v.  State,  34  0.  St.  91;  Hemenway  v.  Smith,  28  Vt.  701, 
706. 

If  the  party  takes  the  stand  he  can  be  compelled  to  testify  on 
cross-examination  to  communications  with  his  counsel.  Inhabit- 
ants of  Woburn  v.  Henshaw,  101  Mass.  193,  200,  3  Am.  Rep.  333. 

28  Minet  v.  Morgan,  1873,  8  Ch.  App.  361,  reviewing  all  the  cases, 
iind  adopting  the  explanation  given  in  Pearsc  v.  Pearse,  1846,  1  De  G. 
&  S.  18-31,  of  Radcliffe  v.  Fursman,  1730,  2  Br.  P.  C.  514.  An  illus- 
tration will  be  found  in  Mayor  of  Bristol  v.  Cox,  1884,  26  Ch.  Div. 
€78. 

29  Wheeler  v.  he  Marchant,  1881,  17  Ch.  D.  675.  See,  too,  Calcraft 
Quest,  [1898],  1  Q.  B.  759. 


558  A  DIGEST  OF  [Part  III. 

Statements  made  to  an  attorney,  with  a  view  to  employing  him, 
have  been  held  within  the  rule,  although  he  was  never  in  fact 
employed.  State  v.  Lolly,  102  Ala.  25;  Denver  Tramway  Co.  v. 
Owens,  20  Col.  107;  Sargent  v.  Hampden,  38  Me.  581. 

One  who  overhears  the  conversation  between  attorney  and  client 
may  testify.  Hoy  v.  Morris,  13  Gray  (Mass.),  519;  Tyler  v.  Hall, 
106  Mo.  313;   Goddard  v.  Gardner,  28  Conn.  172. 

A  bill  of  particulars  prepared  by  a  layman,  by  direction  of  the 
client,  and  handed  by  him  to  the  attorney,  who  did  not  make  use 
of  it,  is  not  a  privileged  communication.  Pulford's  Appeal,  48 
Conn.  249. 

First  paragraph  of  text. —  Duttenhofer  v.  State,  34  Ohio  St.  91,  95. 

When  relation  exists. —  To  entitle  communications  to  be  considered 
as  confidential  and  privileged,  the  relation  of  client  and  attorney 
must  exist.  Granger  v.  Warrington,  3  Gilm.  299;  De  Wolf  v. 
Strader,  26  111.  225;  C,  F.,  R.  &  B.  Co.  v.  Jameson,  48  111.  281; 
Staley  v.  Dodge,  50  111.  43;  People  v.  Barker,  56  111.  299. 

Communications  to  one  not  a  licensed  attorney  are  not  privileged. 
McLaughlin  v.  Gilmore,  1  Brad.  563. 

In  order  that  the  privilege  exist,  one  must  be  consulted  as  an  at- 
torney, not  as  a  mere  friend.  Smith  v.  Long,  106  111.  485;  Goltra 
v.  Wolcott,   14  111.   89. 

Communications  between  friends  are  not  privileged.  Goltra  v. 
Wolcott,  14  111.  89. 

There  is  no  objection  to  having  the  plaintiff's  attorney  swear  as 
to  calculation  of  interest.     Stratton  v.  Henderson,  26  111.  69. 

Waiver. —  If  one  voluntarily  testifies  as  to  communications  with 
his  attorney,  he  may  be  cross-examined  fully.  Swenk  v.  People,  20 
111.   App.    111. 

Letters. —  Letters  from  attorneys  to  their  clients  are  not  admis- 
sible,    higleheart  v.  Jernegan,  16  111.  513. 

Bill  sworn  to. —  A  bill  sworn  to  but  never  filed  is  a  privileged 
communication.    Burnham  v.  Roberts,  70  111.  19. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  559 

Article  117.* 
clergymen  and  medical  men. 

Medical  men  30  and  [probably]  clergymen  may  be  com- 
pelled to  disclose  communications  made  to  them  in  pro- 
fessional confidence. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  247,  248; 
McKelvey  on  Evidence,  p.  295.  But  a  different  rule  has  been  estab- 
lished by  statute  in  many  States. 

Physicians. — Thompson  v.  Ish,  99  Mo.  160,  17  Am.  St.  Rep.  552,  n.; 
Heuston  v.  Simpson,  115  Ind.  62;  Gartside  v.  Com.  Life  Ins.  Co.,  76 
Mo.  446;  People  v.  West,  106  Cal.  89;  Conn.  Life  Ins.  Co.  v.  Union 
Trust  Co.,  117  U.  S.  250;  Gurley  v.  Park,  135  Ind.  440;  Kansas  City, 
etc.,  R.  Co.  v.  Murray,  55  Kan.  336. 

Clergymen. —  Gillooley  v.  State,  58  Ind.  182;  Com.  v.  Drake,  15 
Mass.  161. 

The  burden  of  showing  disqualification  is  upon  the  person  object- 
ing.   People  v.  Koerner,  154  N.  Y.  355. 

Article  118. 

production  of  title-deeds  of  witness  not  a  party. 

No  witness  who  is  not  a  party  to  a  suit  can  be  compelled 
to  produce  his  title-deeds  to  any  property,31  or  any  docu- 
ment the  production  of  which  might  tend  to  criminate 

*  See  Note  XLIV. 

30  Duchess  of  Kingston's  Case,  1776,  20  S.  T.  572-3.  As  to  clergy- 
men, see  Note  XLTV. 

31  Pickering  v.  Noyes,  1823,  1  B.  &  C.  263;  Adams  v.  Lloyd,  1858, 
3  H.  &  N.  351. 


500  A  DIGEST  OF  [Part  III. 

him,  or  expose  him  to  any  penalty  or  forfeiture;32  but  a 
witness  is  not  entitled  to  refuse  to  produce  a  document  in 
his  possession  only  because  its  production  may  expose  him 
to  a  civil  action,33  or  because  he  has  lien  upon  it.34 

No  bank  is  compellable  to  produce  the  books  of  such 
bank,  except  in  the  case  provided  for  in  Article  37.35 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sees.  377,  537 ;  1  Green- 
leaf  on  Evidence  (15th  ed.),  sees.  246,  451,  453;  Machine  Co.  v.  Bat- 
chelder,  68  Vt.  431;  Thompson  v.  Engle,  4  N.  J.  Eq.  271;  Cullison  v. 
Bossom,  1  Md.  Ch.  95 ;  First  Nat.  Bank  v.  Hughes,  6  Fed.  Rep.  741 ; 
Bull  v.  Loveland,  10  Pick.  (Mass.)  9,  14;  Burnham  v.  Morissey,  14 
Gray  (Mass.),  226;  Adams  v.  Porter,  1  Cush.  (Mass.)  170.  See  Les- 
ter v.  People,  150  111.  408,  41  Am.  St.  Rep.  375,  388,  n. 

See  Davenbagh  v.  M'Kennie,  5  Cow.  27 ;  Bonesteel  v.  Lynde,  8 
How.  Pr.  226,  352;  Lane  v.  Cole,  12  Barb.  680. 

New   Jersey. 
Authority. —  Thompson  v.  Engle,  4  N.  J.  Eq.  271. 

32  Whitalcer  v.  Izod,  1809,  2  Tau.  115. 

33  Doe  v.  Date,  1842,  3  Q.  B.  609,  618. 

34  Uope  v.  Liddell,  1855,  7  De  G.  M.  &  G.  331 ;  Hunter  v.  Leathley, 
1830,  10  B.  &  C.  858;  Brassington  v.  Brassington,  1823,  1  Si.  &  Stu. 
455.  It  has  been  doubted  whether  production  may  not  be  refused  on 
the  ground  of  a  lien  as  against  the  party  requiring  the  production. 
This  is  suggested  in  Brassington  v.  Brassington,  and  was  acted  upon 
by  Lord  Denman  in  Kemp  v.  King,  1842,  2  Mo.  &  Ro.  437;  but  it 
seems  to  be  opposed  to  Hunter  v.  Leathley,  1830,  10  B.  &  C.  858,  in 
which  a  broker  who  had  a  lien  on  a  policy  for  premiums  advanced 
was  compelled  to  produce  it  in  an  action  against  the  underwriter  by 
the  assured  who  had  created  the  lien.  See  Ley  v.  Barlow,  1848  (per 
Parke,  B.)5  1  Ex.  801. 

35  42  &  43  Vict.  c.  11. 


€hap.  XV.]  THE  LAW  OF  EVIDENCE.  561 

Maryland. 

Authority. —  Cullison  v.  Bossom,  1  Md.  Ch.  95. 

Pennsylvania. 

Criminating  documents. —  Boyle  v.  Smithman,  146  Pa.  255. 

Exposure  to  penalty. —  A  bank  cannot  be  compelled  to  produce  its 
books  in  a  suit  to  recover  a  penalty  for  usury.  Union  Glass  Go.  v. 
Bank,  10  Pa.  Co.  Ct.  574. 

Article  119. 

production  of  documents  which  another  person, 
having  possession,  could  refuse  to  produce. 

No  solicitor,36  trustee,  or  mortgagee  can  be  compelled  to 
produce  (except  for  the  purpose  of  identification)  docu- 
ments in  his  possession  as  such,  which  his  client,  cestui 
que  trust,  or  mortgagor  would  he  entitled  to  refuse  to 
produce  if  they  were  in  his  possession ;  nor  can  any  one 
who  is  entitled  to  refuse  to  produce  a  document  be  com- 
pelled to  give  oral  evidence  of  its  contents.37 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  241,  246; 
Weeks  on  Attorney-at-Law  (2d  ed.),  sec.  163;  Wertheim  v.  Conti- 
nental R.  Co.,  15  Fed.  Rep.  716;  Harrisburg  Car  Co.  v.  Sloan,  120 
Ind.  156;  Steed  v.  Cruise,  70  Ga.  168.  See  Pulford's  Appeal,  48  Conn. 
247. 

He  can  be  compelled  to  testify  as  to  the  existence  of  the  paper. 
Lease  of  Rhoades  v.  Selin,  4  Wash.  C.  C.  715;  Stokoe  v.  St.  Paul, 

36  Volant  v.  Soyer,  1853,  13  C.  B.  231 ;  Phelps  v.  Prew,  1854,  3  E.  & 
B.  431. 

37  Davies  v.  Waters,  1842,  9  M.  &  W.  608;  Few  v.  Guppy,  1834, 
13  Beav.  457. 

36 


562  A  DIGEST  OF  [Past  III. 

etc.,  R.  Co.,  40  Minn.  545;  Westcott  v.  Atlantic  Co.,  3  Mete.  (Mass.) 
282;  Durkee  v.  Leland,  4  Vt.  612. 

He  may  be  compelled  to  testify  as  to  the  existence  of  the  papers, 
Coveney  v.  Tannahill,  1  Hill,  33,  37  Am.  Dec.  287. 

Pennsylvania. 

A  report  prepared  by  defendant's  agent  for  use  by  counsel  in  the 
trial  of  the  case  need  not  be  produced.  Davenport  Co.  v.  Railroad 
Co.,  166  Pa.  480. 

Article  120. 
witness  not  to  be  compelled  to  criminate  himself. 
No  one  is  bound  to  answer  any  question  if  the  answer 
thereto  would,  in  the  opinion  of  the  judge,  have  a  tendency 
to  expose  the  witness  [or  the  wife  or  husband  of  the  wit- 
ness] to  any  criminal  charge,  or  to  any  penalty  or  forfeit- 
ure which  the  judge  regards  as  reasonably  likely  to  be 
preferred  or  sued  for;38  but  no  one  is  excused  from  an- 
swering any  question  only  because  the  answer  may  estab- 
lish or  tend  to  establish  that  he  owes  a  debt,  or  is  other- 

38  R.  v.  Boyes,  1861,  1  B.  &  S.  330;  followed  and  approved  in  Ear 
parte  Reynolds,  1882,  by  the  Court  of  Appeal;  see  20  Ch.  Div.  298. 
As  to  husbands  and  wives,  see  1  Hale,  P.  C.  301 ;  R.  v.  Cliviger,  1788, 
2  T.  R.  263;  Cartioright  v.  Green,  1803,  8  Ve.  405;  R.  v.  Bathwick. 
1831,  2  B.  &  Ad.  639;  R.  v.  All  Saints,  Worcester,  1817,  6  M.  &  S. 
194.  These  cases  show  that  even  under  the  old  law  which  made  the 
parties  and  their  husbands  and  wives  incompetent  witnesses,  a  wife 
was  not  incompetent  to  prove  matter  which  might  tend  to  incriminate 
her  husband.  R.  v.  Cliviger  assumes  that  she  was,  and  was  to  that 
extent  overruled.  As  to  the  later  law,  see  R.  v.  Halliday,  1860,  Bellr 
257.  The  cases,  however,  do  not  decide  that  if  the  wife  claimed  the 
privilege  of  not  answering  she  would  be  compelled  to  do  so,  and  to 
some  extent  they  suggest  that  she  would  not. 


Chap.  XV.]  THE  LAW  OF  EVIDENCE.  56$ 

■wise  liable  to  any  civil  suit,  either  at  the  instance  of  the 
Crown  or  of  any  other  person.39 

A  person  charged  with  an  offence  and  being  a  witness  in 
pursuance  of  the  Criminal  Evidence  Act,  1898,  may  be 
asked  any  question  in  cross-examination,  notwithstanding 
that  it  would  tend  to  criminate  him  as  to  the  offence 
charged.40 

AMERICAN  NOTE. 

General. 

Authorities. — 1  Greenleaf  on  Evidence  (15th  ed.),  sees.  451-453; 
Wharton  on  Evidence,  sees.  533-541. 

Exemption. —  First  paragraph  of  text.  Eckstein's  Petition,  148 
Pa.  St.  509 ;  Temple  v.  Com.,  75  Va.  892 ;  State  v.  Simmons  Co.,  109 
Mo.  118;  Stevens  v.  State,  50  Kan.  712;  Winters  v.  People,  139  111.. 
363;  State  v.  Baden,  43  Minn.  253;  Ex  parte  Boscowitz,  84  Ala„ 
463;  Coburn  v.  Odell,  30  N.  H.  540;  Janvrin  v.  Scamaron,  29  N.  H. 
280;  Chamberlain  v.  Wilson,  12  Vt.  491;  Emery's  Case,  107  Mass. 
172;  Com.  v.  Trider,  143  Mass.  180. 

A  witness  cannot  be  compelled  to  disclose  facts  which  would 
subject  him  to  a  criminal  prosecution.  Grannis  v.  Branden,  5 
Day  (Conn.),  272;  Barnes  v.  State,  19  Conn.  404. 

On  a  prosecution  for  selling  liquor  to  a  common  drunkard,  the 
person  claimed  to  be  such  was  a  witness  for  the  State  to  prove  the 
sale,  and  was  asked,  upon  cross-examination,  if  he  was  a  common 
drunkard.  Held,  that  he  was  not  bound  to  answer,  as  an  answer 
might  criminate  him.     Barnes  v.  State,  19   Conn.   404. 

The  rule  does  not  apply  if  the  criminal  prosecution  is  barred  by 
lapse  of  time.  Lamson  v.  Boyden,  160  111.  613;  Mahanke  v.  Cleland, 
76  la.  401 ;  Childs  v.  Merrill,  66  Vt.  302.  Or  statute  granting  an  ex- 
emption to  such  witness.  Brown  v.  Walker,  161  U.  S.  591;  Ex  parte 
Cohen,  104  Cal.  524;  State  v.  Noivell,  58  N.  H.  314. 

39  46  Geo.  III.  c.  37.  See  R.  v.  Scott,  1856,  25  L.  J.  M.  C.  128,  and 
subsequent  cases  as  to  bankrupts,  and  Ex  parte  Scholfield,  1877,  6 
Ch.  Div.  230.  Quaere,  Is  he  bound  to  produce  a  document  incriminat- 
ing himself?    See  Webb  v.  East,  1880,  5  Ex.  D.  23  &  108. 

40  61  &  62  Vict.  c.  36,  s.  1   (e). 


564  A  DIGEST  OF  [Part  III. 

The  court  may,  but  need  not,  advise  the  witness  of  his  right  to 
refuse  to  answer.  Com.  v.  Howe,  13  Gray  (Mass.),  26;  Com.  v.  Shaw, 
4  Cush.  (Mass.)  594;  Mayo  v.  Mayo,  119  Mass.  292. 

Penalty. —  A  witness  cannot  be  compelled  to  give  testimony  which 
may  expose  him  to  a  penalty.  Nor,  it  seems,  to  give  testimony  which 
may  subject  him  to  a  debt,  although  called  as  a  witness  in  a  suit  be- 
tween third  parties.     Benjamin  v.  Hathaway,  3  Conn.  532. 

Husband  or  wife-. — Cornelius  v.  Hambay,  150  Pa.  St.  359;  Keep  v. 
Griggs,  12  111.  App.  511;  People  v.  Langtree,  64  Cal.  256;  Woods  v. 
State,  76  Ala.  35;  Com.  v.  Sparks,  7  Allen  (Mass.),  534;  State  v. 
Bridgman,  49  Vt.  202;  State  v.  Briggs,  9  R.  I.  361. 

Waiver. —  The  privilege  may  be  waived.  State  v.  Wentworth,  65 
Me.  234;  Samuel  v.  People,  164  111.  379;  State  v.  Van  Winkle,  80  la. 
15;  State  v.  Foster,  23  N.  H.  348;  Foster  v.  Pierce,  11  Cush.  (Mass.) 
437,  59  Am.  Dec.  152;  Com.  v.  Nichols,  114  Mass.  285,  19  Am.  Rep. 
346;  Com.  v.  Morgan,  107  Mass.  199. 

By  testifying  as  to  part,  the  witness  waives  his  protection  and 
can  be  compelled  to  testify  as  to  the  whole.  People  v.  Freshour,  55 
Cal.  375;  State  v.  Fay,  43  la.  561;  State  v.  Nichols,  29  Minn.  357; 
Coburn  v.  Odell,  30  N.  H.  540;  State  v.  Witham,  72  Me.  531;  Com.  v. 
Pratt,  126  Mass.  462;  Com.  v.  Nichols,  114  Mass.  285;  Com.  v.  Smith, 
163  Mass.  431.    See  Samuel  v.  People,  164  111.  379. 

The  witness,  by  taking  the  stand,  waives  his  protection.  Disque 
v.  State,  49  N.  J.  L.  249 ;  Thomas  v.  State,  103  Ind.  419 ;  Thomas  v. 
State,  100  Ala.  53;  State  v.  Thomas,  98  N.  C.  599;  People  v.  Wong 
Ah  Leorg,  99  Cal.  440 ;  State  v.  Witham,  72  Me.  531 ;  State  v.  Gris- 
loold,  67  Conn.  307. 

Where  a  witness  voluntarily  testifies  in  chief  on  a  particular 
subject,  he  may  be  cross-examined  on  the  same  subject,  although 
his  answers  may  criminate  or  disgrace  him.  Norfolk  v.  Gaylord, 
28  Conn.  312. 

Civil  liability. — ■  Sustaining  text.  Bull  v.  Loveland,  10  Pick. 
'(Mass.)  9,  12;  Lees  v.  U.  S.,  150  U.  S.  476;  Gadsden  v.  Woodward, 
103  X.  Y.  242;  Lowney  v.  Perham,  20  Me.  235. 

Exposure  to  penalty. —  Sustaining  text.  Livingston  v.  Tompkins, 
4  Johns.  Ch.  432;  Livingston  v.  Harris,  3  Paige,  533,  11  Wend.  329; 
Matter  of  Kip,  1  Paige,  601 ;  People  v.  Rector,  19  Wend.  569 ;  Mat- 
ter of  Dickinson,  58  How.  Pr.  260. 

Exemption. —  First  paragraph  of  text.  Winters  v.  People,  139 
111.   363. 


Chap.  XV.]  THE   LAW   OF  EYIDEXCE.  565 

A  defendant  may  not  give  testimony  which  will  criminate  him, 
nor  need  he  produce  documents  which  would  have  that  effect. 
Lampson  v.  Boyden,  160  111.  613. 

Caution. — The  court  may  caution  a  witness  that  he  need  not  in- 
criminate himself.     Eggers  v.  Fox,  177  111.  185,  52  N.  E.  269. 

Prosecution  barred. —  One  cannot  refuse  to  answer  on  the  ground 
that  the  evidence  would  incriminate  himself  if  the  prosecution  would 
be  barred  by  lapse  of  time.  Prussing  v.  Jackson,  85  111.  App.  324; 
Lamson  v.  Boyden,  160  111.  613. 

Testimony  tending  to  disgrace. —  A  witness  cannot  refuse  to  an- 
swer on  the  ground  that  his  testimony  would  disgrace  him.  Wei- 
don  v.  Burch,  12  111.  374. 

Questions  may  be  asked  on  cross-examination  which  tend  to  dis- 
grace a  witness.     City  v.  Hardy,  98  Ind.  577. 

New   Jersey. 

Statute. —  Witnesses  need  not  answer  questions  exposing  them 
to  criminal  prosecution,  penalty,  or  forfeiture  of  estate.  G.  S.  1895, 
"Evidence,"  10. 

Waiver. —  The  witness,  by  taking  the  stand,  waives  his  protection. 
Disque  v.  State,  49  N.  J.  L.  249. 

Husband  and  wife. —  State  v.  Wilson,  31  N.  J.  L.  77. 

Legislative  investigations. —  No  privilege  in  investigations  before 
legislative  committees.     G.  S.   1895,  "  Evidence,"  75. 

Privilege  denied  in  cases  of  fraud. —  G.  S.  1895,  "Crimes,"  158. 

Maryland. 

General  rule. —  Taney  v.  Kemp,  4  II.  &  J.  349. 

A  party  indicted  for  fraud  cannot  be  compelled  to  produce  his 
books  of  account  as  evidence  against  himself.  Blum  v.  State,  94 
Md.  375. 

It  is  for  the  court  to  say  whether  or  not  the  answer  to  a  ques- 
tion is  likely  to  incriminate  him.  Chesapeake  Club  v.  State,  63 
Md.  446. 

Gambling  cases. —  This  privilege  taken  away  in  gambling  cases. 
P.  G.  L.  1888,  art.  27,  sec.  131. 

Exposure  to  civil  suit. —  A  witness  may  be  compelled  to  answer, 
though  it  may  tend  to  render  him  liable  in  a  civil  action  to  some 


506  A  DIGEST  OF  [Part  III. 

penalty  or  loss.  Hays  v.  Richardson,  1  G.  &  J.  366;  Naylor  v. 
Semmes,  4  G.  &  J.  274;  Taney  v.  Kemp,  4  H.  &  J.  349. 

A  witness  is  not  excused  merely  because  his  answer  would  be 
against  his  interest.     Stoddart  v.  Manning,  2  H.  &  J.  147. 

Personal  privilege  of  witness. —  A  witness  may  refuse  to  answer  a 
question  that  tends  to  incriminate  him;  but  this  is  his  personal 
privilege,  not  that  of  the  party  calling  him  as  a  witness.  Chesa- 
peake Club  v.  State,  63  Md.  446. 

Waiver. —  When  the  accused  in  a  criminal  case  takes  the  stand, 
he  waives  his  right  to  refuse  to  answer  questions  tending  to  expose 
him  to  penal  liability.     Guy  v.  State,  90  Md.  29. 

When  a  party  plaintiff  takes  the  stand  he  is  held  to  have  waived 
his  privilege  as  to  criminating  questions.  Roddy  v.  Finnegan,  43 
Md.  490. 

Penns.ylvania. 

Const,  of  Pa.,  art.  I,  sec.  9. 

Exemption. —  First  paragraph  of  text.  Eckstein's  Petition,  148 
Pa.  509;  Ex  parte  Doran,  2  Pars.  467. 

When  a  witness  refuses  to  answer  a  question  on  the  ground  that 
it  may  criminate  him,  no  inference  can  properly  be  drawn  from 
such  refusal.     Phelin  v.  Kenderdine,  20  Pa.  354. 

A  court  will  compel  the  production  of  the  books  of  a  corporation 
even  though  the  entries  made  therein  by  one  of  the  parties  to  the 
suit  may  tend  to  criminate  him.  McElree  v.  Darlington,  187  Pa. 
593. 

Husband  or  wife. —  Cornelius  v.  Hamoay,  150  Pa.  359. 

A  wife  need  not  answer  questions  incriminating  her  husband. 
Com.  v.  Reid,  8  Phila.  385. 

When  a  statute  permits  a  wife  to  testify  for  her  husband,  s,he 
may  be  compelled  in  cross-examination  to  testify  against  him. 
Balentine  v.  White,  77  Pa.  20. 

Election  contests. —  The  rule  does  not  apply  in  contested  election 
cases.  Const,  of  Pa.,  art.  VIII,  sec.  10:  Pepper  &  Lewis'  Digest  of 
Laws.  "  Contested  Elections,"   sec.  41. 

A  witness  can  be  compelled  to  answer  incriminating  questions  in 
contested  election  cases,  because  he  is  protected  by  the  Bill  of  Rights. 
Kelly's  Contested  Election,  200  Pa.  430. 

Question  for  the  court. —  The  criminating  tendency  of  a  question 
is  for  the  trial  judge.     He  may  compel  witness  to  answer,  but  in 


Chap.  XV.]  TEE   LAW   OF  EVIDENCE.  '  567 

such  case  the  answer  cannot  ever  be  used  against  the  witness.    Com. 
v.  Bell,  145  Pa.  374. 

Testimony  wrongfully  obtained  from  the  witness  by  the  court  can- 
not be  used  against  him.     Horstman  v.  Kaufman,  97  Pa.  147. 


Article  121. 
corroboration  when  required.* 

No  plaintiff  in  any  action  for  breach  of  promise  of 
marriage  can  recover  a  verdict,  unless  his  or  her  testimony 
is  corroborated  by  some  other  material  evidence  in  support 
•of  such  promise.41  The  fact  that  the  defendant  did  not 
answer  letters  affirming  that  he  had  promised  to  marry  the 
plaintiff  is  not  such  corroboration.42 

JSTo  order  against  any  person  alleged  to  be  the  father  of  a 
bastard  child  can  be  made  by  any  justices,  or  confirmed  on 
appeal  by  any  Court  of  Quarter  Session,  unless  the  evi- 
dence of  the  mother  of  the  said  bastard  child  is  corrobo- 
rated in  some  material  particular  to  the  satisfaction  of  the 
said  justices  or  Court  respectively.43 

jSTo  person  can  be  convicted  of  an  offence  against  sect.  4 
of  the  Criminal  Law  Amendment  Act,  1885,  or  an  offence 
against  the  Prevention  of  Cruelty  to  Children  Act,  1894, 
or  an  offence  mentioned  in  the  Schedule  to  that  Act  (as  to 
which  see  p.  347,  note  11,  upon  the  unsworn  evidence  of 
a  child  of  tender  years,  unless  such  unsworn  evidence  is 

*  See  Article  122. 
41  32  &  33  Vict.  c.  68,  s.  2. 

^Wiedemann  v.  Walpole,  [1891],  2  Q.  B.  534. 
43  8  &  9  Vict.  c.  10,  s.  6 ;  35  &  36  Vict.  c.  6,  s.  4. 


568  .  A  DIGEST  OF  [Pabt  III. 

corroborated   by    material    evidence    implicating    the   ac- 
cused.44 

When  the  only  proof  against  a  person  charged  with  a 
criminal  offence  is  the  evidence  of  an  accomplice,  uncor- 
roborated in  any  material  particular,  it  is  the  duty  of  the 
judge  to  warn  the  jury  that  it  is  unsafe  to  convict  any 
person  upon  such  evidence,  though  they  have  a  legal  right 
to  do  so.45 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  414;  1  Greenleaf  on 
Evidence  (15th  ed.),  sees.  379-382;  1  Am.  &  Eng.  Encyclopaedia  of 
Law   (2d  ed.),  p.  399. 

The  jury  may  convict  on  uncorroborated  testimony.  Cox  v.  Com.T 
125  Pa.  St.  24;  Hoyt  v.  People,  140  111.  588;  Ayers  v.  State,  88  Ind. 
275;  People  v.  Gallagher,  75  Mich.  512;  Campbell  v.  People,  159  111. 
9;  Lamb  v.  State,  40  Neb.  312;  State  v.  Maney,  54  Conn.  178;  State 
v.  Wolcott,  21  Conn.  272;  State  v.  Stebbins,  29  Conn.  463,  79  Am.  Dec. 
223;  State  v.  Williamson,  42  Conn.  261;  State  v.  Potter,  42  Vt.  495; 
State  v.  Dana,  59  Vt.  614;  State  v.  Litchfield,  58  Me.  270;  State  v. 
Cunningham,  31  Me.  355;  State  v.  Kibling,  63  Vt.  636;  Com.  v.  Bos- 
worth,  22  Pick.  (Mass.)  397;  Com.  v.  Larrabee,  99  Mass.  413;  Com. 
v.  Scott,  123  Mass.  237,  25  Am.  Rep.  81 ;  Com.  v.  Holmes,  127  Mass. 
424,  34  Am.  Rep.  391. 

In  some  States  it  is  the  practice  to  warn  the  jury.  Collins  v.  State, 
98  111.  584;  Cheathem  v.  State,  67  Miss.  335;  State  v.  Barber,  113 
N.  C.  711;  Ingalls  v.  State,  48  Wis.  647;  Com.  v.  Price,  10  Gray 
(Mass.),  472,  71  Am.  Dec.  668;  Com.  v.  Brooks,  9  Gray  (Mass.), 
299;  Com.  v.  Larrabee,  99  Mass.  413;  State  v.  Kibling,  63  Vt.  636. 

It  is  held  in  some  States  that  it  is  not  error  to  omit  the  caution. 
State  v.  Potter,  42  Vt.  495;   State  v.  Kibling,  63  Vt.  636;   Com.  v. 

«48  &  49  Vict.  c.  69,  s.  4;  57  &  58  Vict.  c.  41,  s.  15.  See  Article 
123a. 

45  1  Ph.  Ev.  93-101;  Taylor,  ss.  967-971;  3  Russ.  Cri.  642-653. 
See  In  re  Meunier,  [1894],  2  Q.  B.  415. 


Chap.  XV.]  THE   LAW   OF  EVIDENCE.  569 

Holmes,  127  Mass.  424,  34  Am.  Rep.  391 ;  Com.  v.  Scott,  123  Mass. 
237,  25  Am.  Rep.  81;  Com.  v.  Wilson,  152  Mass.  12;  Com.  v.  Bishop, 
165  Mass.  148.  But  see  State  v.  Williamson,  42  Conn.  261;  State  v. 
Maney,  54  Conn.  178. 

Detectives  and  others  who  act  with  the  criminals,  in  order  to 
bring  them  to  justice,  are  not  accomplices.  State  v.  McKean,  36  la. 
343;  People  v.  Bolanger,  71  Cal.  17;  Com.  v.  Hollister,  157  Pa.  St. 
13;  State  v.  Hoxsie,  15  R.  I.  1. 

Any  evidence  is  corroborative  which  tends  to  connect  the  defend- 
ant with  the  crime.  State  v.  Donnelly,  130  Mo.  642;  Hester  v.  Com., 
85  Pa.  St.  139;  State  v.  Maney,  54  Conn.  178.  See  U.  S.  v.  Howell, 
56  Fed.  Rep.  20;  Com.  v.  Holmes,  127  Mass.  424. 

One  accomplice  cannot  corroborate  another,  unless,  perhaps,  they 
have  had  no  opportunity  to  be  together  before  the  trial.  State  v. 
Williamson,  42  Conn.  265,  266. 

Generally  divorces  will  not  be  granted  upon  the  testimony  of 
parties  alone.  Robbins  v.  Bobbins,  100  Mass.  150;  Cooper  v.  Cooper, 
88  Cal.  45;  Lewis  v.  Lewis,  75  Pa.  200;  Rie  v.  Rie,  34  Ark.  37.  Con- 
tra, Flattery  v.  Flattery,  88  Pa.  St.  27;  Sylvis  v.  Sylvis,  11  Col.  319. 

Breach  of  promise. —  Modifying  rule  of  text.  Homan  v.  Earle,  53 
N.  Y.  267. 

Seduction. —  Corroboration  is  required  in  a  prosecution  for  seduc- 
tion.   People  v.  Kearney,  110  N.  Y.  188. 

Accomplice. —  Conviction  may  be  had  upon  the  uncorroborated  tes- 
timony of  an  accomplice.  Cross  v.  People,  47  111.  152;  Friedberg 
v.   People,    102    111.    160. 

An  accomplice  is  a  competent  witness.  Earll  v.  People,  73  111. 
330 ;  Collins  v.  People,  98  111.  584. 

An  uncorroborated  accomplice  is  a  competent  witness.  Cray  v. 
People,  26  111.  344;  Friedberg  v.  People,  102  111.  1G0. 

Bastardy. —  In  a  prosecution  for  bastardy,  the  testimony  of  the 
complainant  must  be  corroborated.  People  v.  Chrisman,  66  111.  162; 
McCoy  v.  People,  65  111.  439. 

New    Jersey. 

What  are  corroborating  circumstances. —  State  v.  Guild,  10  N.  J.  L. 
163. 

Seduction. —  Corroborative  evidence  required  to  prove  seduction. 
Zabriskie  v.  State,  43  N.  J.  L.  640. 

In  prosecution  for  seduction  the  subsequent  conduct  and  conversa- 


570  A  DIGEST  OF  [Pabt  III. 

tions  of  the  defendant  are  admissible  to  corroborate  the  testimony 
of  prosecutrix.     State  v.  Brown,  64  N.  J.  L.  414. 

Marriage. —  An  admission  of  a  marriage  in  an  answer  is  sufficient 
to  prove  it  when  corroborated.     Dare  v.  Dare,  52  N.  J.  Eq.   195. 

Accomplices. —  Corroboration  of  the  testimony  of  an  accomplice  is 
advisable  but  not  necessary.     State  v.  Hyer,  39  N.  J.  L.  598. 

Woman  taking  a  potion  to  cause  an  abortion  is  not  an  accomplice. 
State  v.  Hyer,  39  N.  J.  L.  598. 

Confessions  in  criminal  cases. —  A  confession  is  sufficient  for  con- 
viction without  corroboration  if  there  be  other  evidence  of  the 
corpus  delicti.     State  v.  Guild,  10  N.  J.  L.  163. 

Divorce. —  Corroborative  evidence  required  in  divorce  cases.  Mc- 
Shane  v.  McShane,  45  N.  J.  Eq.  341;  Summerbell  v.  Summerbell,  37 
N.  J.  Eq.  603;   McGrail  v.  McGrail,  48  N.  J.  Eq.  532. 

Divorce  not  to  be  granted  on  uncorroborated  testimony  of  com- 
plainant. Woodworth  v.  Woodworth,  21  N.  J.  Eq.  251;  Palmer  v. 
Palmer,  22  N.  J.  Eq.  88;  Tate  v.  Tate,  26  N.  J.  Eq.  55;  Belton  v. 
Belton,  26  X.  J.  Eq.  449;  Cummins  v.  Cummins,  15  N.  J.  Eq.  138; 
Mount  v.  Mount,  15  N.  J.  Eq.  162.  So  also  adultery  charged  by  the 
defendant  must  be  sustained  by  other  proof  than  that  of  the  de- 
fendant alone.     Reid  v.  Reid,  21  N.  J.  Eq.  251. 

Confessions  in  divorce  cases  are  to  be  taken  with  great  caution 
and  should  be  held  insufficient  unless  corroborated.  Clutch  v. 
Clutch,  1  N.  J.  Eq.  474;  Miller  v.  Miller,  2  N.  J.  Eq.  139;  Jones  v. 
Jones,  17  N.  J.  Eq.  351;  Derby  v.  Derby,  21  N.  J.  Eq.  36. 

In  divorce,  corroboration  of  the  petitioner  is  necessary  to  prove 
desertion.  Pullcn  v.  Pullen,  29  N.  J.  Eq.  541;  Sandford  v.  Sand- 
ford,  32  N.  J.  Eq.  420. 

Maryland. 

Proof  of  one's  own  declarations  is  not  admissible  to  corroborate. 
P.  G.  L.   1888,  art.   35,  sec.  2. 

Divorce,  etc.—  Testimony  of  plaintiff  must  be  corroborated  in  ac- 
tions for  adultery,  divorce,  and  breach  of  promise  of  marriage. 
P.  G.  L.   1888.  art.  35,  sec.  3. 

Pennsylvania. 

In  equity. —  A  written  instrument  will  not  be  reformed  on  the 
uncorroborated  testimony  of  one  witness.  Sutch's  Estate  (No.  1) , 
201   Pa.  305. 


Chap.  XV.]  THE   LAW   OF  EVIDENCE.  571 

Accomplices. —  Evidence  corroborating  an  accomplice  must  tend  to 
connect  the  accused  with  the  crime.  Watson  v.  Com.,  95  Pa.  418; 
Cox  v.  Com.,  125  Pa.  94. 

An  accomplice  need  not  be  corroborated  in  every  detail.  Ettinger 
v.  Com.,  98  Pa.  338. 

Detectives  and  others  who  act  with  the  criminals,  in  order  to 
bring  them  to  justice,  are  not  accomplices.  Com.  v.  Hollister,  157 
Pa.  13;   Campbell  v.  Com.,  84  Pa.  187. 

Rape,  seduction,  etc. — ■  In  rape,  corroborative  evidence  should  be 
required,  if  possible.     Com.  v.  Childs,  2  Pitts.  391. 

Corroborative  evidence  required  to  prove  seduction.  Rice  v.  Com., 
100  Pa.  28. 

Corpus  delicti. —  A  confession  is  not  sufficient  for  conviction  with- 
out other  proof  of  the  corpus  delicti.  Com.  v.  Hanlon,  8  Phila.  401; 
Gray  v.  Com.,  101  Pa.  380. 

The  jury  may  convict  on  uncorroborated  testimony.  Cox  v.  Com., 
125  Pa.  24. 

Any  evidence  is  corroborative  which  tends  to  connect  the  defend- 
ant with  the  crime.     Hester  v.  Com.,  85  Pa.  139. 

Divorce. —  Instance  of  a  divorce  granted  upon  uncorroborated  tes- 
timony of  a  party.     Flattery  v.  Flattery,  88  Pa.  27. 

Article  121a. 
claim  on  estate  of  deceased  person. 
Claims  upon  the  estates  of  deceased  persons,  whether 
founded  upon  an  allegation  of  debt  or  of  gift,  ought  not  to 
he  maintained  upon  the  uncorroborated  testimony  of  the 
claimant,  unless  circumstances  appear  or  are  proved  which 
make  the  claim  antecedently  probable,  or  throw  the  burden 
of  disproving  it  on  the  representatives  of  the  deceased. 

Illustrations, 
(a)   A,  a  widow,  swore  that  her  deceased  husband  gave  her  plate, 
Ac,  in  his  house,  but  no  circumstances  corroborated  her  allegation. 
Her  claim  was  rejected.46 

46  Finch  v.  Finch,  1883,  23  Ch.  Div.  267. 


572  A  DIGEST  OF  [Part  III. 

(o)  A,  a  widow,  claimed  the  rectification  of  a  settlement  drawn  by 
her  husband  the  night  before  their  marriage,-  and  giving  him  advan- 
tages which,  as  she  swore,  she  did  not  mean  to  give  him,  and  were  not 
explained  to  her  by  him.  The  settlement  was  not  one  which,  in  the 
absence  of  agreement  between  the  parties,  would  have  been  sanctioned 
by  the  Court.     Her  claim  was  admitted  though  uncorroborated.47 

AMERICAN  NOTE. 
General. 

See  Hatch  v.  Atkinson,  56  Me.  324;  Dilts  v.  Stevenson,  17  N.  J. 
Eq.  407;  Farmer's  Exr.  v.  Farmer,  39  N.  J.  Eq.  211. 

Article  122. 
number  of  witnesses. 

In  trials  for  high  treason,  or  misprision  of  treason,  no 
one  can  be  indicted,  tried,  or  attainted  (unless  he  pleads 
guilty)  except  upon  the  oath  of  two  lawful  witnesses, 
either  both  of  them  to  the  same  overt  act,  or  one  of  them 
to  one  and  another  of  them  to  another  overt  act  of  the 
same  treason.  If  two  or  more  distinct  treasons  of  divers 
heads  or  kinds  are  alleged  in  one  indictment,  one  witness 
produced  to  prove  one  of  the  said  treasons  and  another 
witness  produced  to  prove  another  of  the  said  treasons  are 
not  to  be  deemed  to  be  two  witnesses  to  the  same  treason 
within  the  meaning  of  this  article.48 

This  provision  does  not  apply  to  cases  of  high  treason  in 
compassing  or  imagining  the  Queen's  death,  in  which  the 

47 Livesey  v.  Smith,  1880,  15  Ch.  Div.  655.  In  re  Gamett,  Gandy 
v.  Macaulay,  1885,  31  Ch.  Div.  1,  is  a  similar  case.  In  In  re  Hodg- 
son, Beckett  v.  Ramsdale,  1885,  31  Ch.  Div.  p.  183,  the  language  ot 
Hannen,  J.,  in  words  somewhat  relaxes  the  rule,  but  not,  I  think, 
in  substance. 

48  7  &  8  Will.  III.  c.  3,  ss.  2,  4. 


Chap.  XV. J  THE   LAW   OF  EYIDEXCE.  573 

overt  act  or  overt  acts  of  such  treason  alleged  in  the  indict- 
ment are  assassination  or  killing  of  the  Queen,  or  any  di- 
rect attempt  against  her  life,  or  any  direct  attempt  against 
her  person,  whereby  her  life  may  be  endangered  or  her  per- 
son suffer  bodily  harm,49  or  to  misprision  of  such  treason. 
If  upon  a  trial  for  perjury  the  only  evidence  against  the 
defendant  is  the  oath  of  one  witness  contradicting  the  oath 
on  which  perjury  is  assigned,  and  if  no  circumstances  are 
proved  which  corroborate  such  witness,  the  defendant  is 
entitled  to  be  acquitted.50 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed.),  sees.  255-259; 
1  Wharton  on  Evidence,  sec.  414. 

Treason  against  the  United  States.  Art.  3,  sec.  3,  of  the  U.  S. 
Constitution. 

Perjury. — ■  Com.  v.  Parker,  2  Cush.  (Mass.)  212. 

In  perjury,  one  witness,  with  corroborating  circumstances,  is  suffi- 
cient. Com.  v.  Parker,  2  Cush.  (Mass.)  212;  Com.  v.  Butland,  119 
Mass.  317,  324;  Com.  v.  Pollard,  12  Mete.  (Mass.)  225;  Williams  v. 
Com.,  91  Pa.  St.  493;  People  v.  Wells,  103  Cal.  631;  State  v.  Hawk- 
ins, 115  N.  C.  712;  U.  S.  v.  Hall,  44  Fed.  Rep.  864;  State  v.  Jean, 
42  La.  Ann.  946;  State  v.  Head,  57  Mo.  252. 

New   Jersey. 
Rule  in  chancery. —  When  one  witness  in  support  of  allegations  of 
bill  is  not  sufficient.     Morris  v.  White,  36  N.  J.  Eq.  324. 

Pennsylvania. 

A  single  uncorroborated  witness  is  sufficient  to  prove  murder. 
M chain  v.  Com.,  99  Pa.  86. 

To  prove  that  a  written  contract  has  been  changed  by  parol,  testi- 
mony equal   in  weight  to  that  of  two  witnesses  must  be  produced. 

49  39  &  40  Geo.  III.  c.  93.  50  1  Russ.  on  Crimes,  368. 


674  A  DIGEST  OF  [PabiIH. 

Pennsylvania  Iron  Co.  v.  Diller,  1  Atl.  924;  Tlwmas  v.  Loose,  114 
Pa.  35;  Jones  v.  Backus,  114  Pa.  120;  Day  v.  Osborn,  9  Atl.  643; 
Beckett  v.  Allison,  188  Pa.  279. 

Usage.—  Business  usage  may  be  proved  by  one  witness.  Adams 
v.  Insurance  Co.,  95  Pa.  348. 

Rule  in  chancery. —  When  one  witness  in  support  of  allegations  of 
the  bill  is  not  sufficient.     Smith  v.  Ewing,  151  Pa.  256. 

Perjury,  supporting  text. —  Williams  v.  Com.,  91  Pa.  493. 

Treason. —  Respublica  v.  McCarty,  2  Dall.  86. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  575 


CHAPTER  XVI. 

OF  TAKING  ORAL  EVIDENCE,  AND  OF  THE  EXAMINATION 
OF  WITNESSES. 

Article  123. 

evidence  to  be  upon"  oath,  except  in  certain  cases. 

All  oral  evidence  given  in  any  proceeding  must  be  given 
upon  oath,  except  as  is  stated  in  this  and  the  following 
article. 

Every  person  objecting  to  being  sworn,  and  stating,  as 
the  ground  of  such  objection,  either  that  he  has  no  relig- 
ious belief,  or  that  the  taking  of  an  oath  is  contrary  to  his 
religious  belief,  may  make  his  solemn  affirmation,  which  is 
of  the  same  force  and  effect  as  if  he  had  taken  the  oath, 
and  if,  having  made  such  affirmation,  he  wilfully  and  cor- 
ruptly gives  false  evidence,  he  is  liable  to  be  punished  as 
for  perjury. 

Such  affirmation  must  be  as  follows:  — 

"  I,  A.  B.,  do  solemnly,  sincerely,  and  truly  declare  and 
affirm," 

and  then  proceed  with  the  words  of  the  oath  prescribed  by 
law,  omitting  any  words  of  imprecation  or  calling  to  wit- 
ness.1 

Where  an  oath  has  been  duly  administered  and  taken, 
the  fact  that  the  person  to  whom  the  same  was  adminis- 

i  51  &  52  Vict.  c.  46,  the  Oaths  Act,  1888,  which  repeals  the  pre- 
vious enactments  on  the  subject. 


576  A  DIGEST  OF  {Part  III. 

tered  had,  at  the  time  of  taking  such  oath,  no  religions 
belief,  does  not  for  any  purpose  affect  the  validity  of  such 

oath.2 

AMERICAN  NOTE. 

General. 

Authority. —  1  Greenleaf  on  Evidence    (15th  ed.),  sec.  371. 

Atheists. —  See  article  107  of  this  book. 

It  is  enough  to  show  that  an  oath  was  administered  by  one  who 
habitually  did  it,  in  the  absence  of  proof  that  he  was  not  properly 
appointed  an  officer.     Morrell  v.  People,  32  111.  499. 

New  Jersey. 

Affirmation  is  not  sufficient  if  the  witness  does  not  object  to  being 
sworn.  Williamson  v.  Carroll,  1  Harr.  217.  When  the  record  is 
silent  it  is  presumed  that  a  witness  was  sworn.  Doughty  v.  Read, 
Pen.   901. 

Witness  competent  though  he  does  not  believe  God  will  punish 
perjury.     Percy  v.  Powers,  51  N.  J.  L.  432. 

Maryland. 

After  judgment  a  party  cannot  object  that  certain  evidence  not 
taken  on  oath  was  admitted.     Nesoitt  v.  Dallam,  7  G.  &  J.  494. 

Pennsylvania. 

Statute. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Oaths  and  Affirma- 
tions." 

Article  123a. 
unsworn  evidence  of  young  child. 
Where  upon  the  hearing  of  a  charge  under  sect.  4  of  the 
Criminal  Law  Amendment  Act,  1885,  a  child  of  tender 
years  who  is  tendered  as  a  witness  does  not,  in  the  opinion 
of  the  Court,  understand  the  nature  of  an  oath,  the  evi- 
dence of  such  child  may  be  received,  though  not  given  upon 
oath,  if,  in  the  opinion  of  the  Court,  such  child  is  possessed 

2  51  &  52  Vict.  c.  46,  s.  3. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  577 

of  sufficient  intelligence  to  justify  the  reception  of  the 
evidence,  and  understands  the  duty  of  speaking  the  truth  ;3 

Provided  that  no  person  can  be  convicted  in  such  a  case 
unless  such  unsworn  evidence  is  corroborated  by  other  ma- 
terial evidence  implicating  the  accused.3 

Any  witness  whose  evidence,  not  upon  oath,  has  been 
admitted  as  mentioned  in  this  article  is  liable  to  indict- 
ment and  punishment  for  perjury  in  all  respects  as  if  he 
or  she  had  been  sworn.3 

If  evidence  not  upon  oath  is  given  under  the  provisions 
stated  in  this  article,  and  the  charge  is  one  of  felony,  the 
prisoner  may  be  convicted  under  sect.  9  of  the  Criminal 
Law  Amendment  Act,  1885,  of  an  offence  4  in  respect  of 
which  such  unsworn  evidence  might  not  have  been  given.5 
If  the  charge  is  one  of  misdemeanour,  the  prisoner  cannot 
be  convicted  of  another  misdemeanour,  in  respect  of  which 
such  unsworn  evidence  might  not  have  been  given,  if  such 
other  misdemeanour  was  charged  in  another  count  of  the 
indictment.6 

Where,  in  any  proceeding  against  any  person  for  an 
offence  under  the  Prevention  of  Cruelty  to  Children  Act, 
1894,  or  for  any  of  the  offences  mentioned  in  the  Schedule 
to  that  Act,7  the  child  in  respect  of  whom  the  offence  is 

3  48  &  49  Viet.  c.  69,  s.  4.  The  offences  under  this  section  are,  un- 
lawfully and  carnally  knowing,  and  attempting  unlawfully  and  car- 
nally to  know  any  girl  under  thirteen. 

4  These  offences  are,  any  offence  under  ss.  3,  4.  5  of  the  Criminal 
Law  Amendment  Act,  1885,  and  indecent  assault. 

$  R.  Wealand,  1888,  20  Q.  B.  D.  827.     See  Note  XLIVa. 
<3ff.  v.  Paul,  [1S90],  25  Q.  B.  D.  202.     See  note  XLIVa. 
7  See  p.  347,  note  11. 

37 


578  A  DIGEST  OF  [Part  III. 

charged  to  have  been  committed,  or  any  other  child  of 
tender  years  who  is  tendered  as  a  witness,  does  not,  in  the 
opinion  of  the  Court,  understand  the  nature  of  an  oath, 
the  evidence  of  such  child  may  be  received,  though  not 
given  upon  oath,  if,  in  the  opinion  of  the  Court,  such  child 
is  possessed  of  sufficient  intelligence  to  justify  the  recep- 
tion of  the  evidence,  and  understands  the  duty  of  speaking 
the  truth. 

And  the  evidence  of  such  child,  though  not  given  on 
oath,  but  otherwise  taken  and  reduced  into  writing,  in 
accordance  with  the  provisions  of  sect.  17  of  the  Indict- 
able Offences  Act,  1848,8  or  sect.  13  of  the  Prevention 
of  Cruelty  to  Children  Act,  1894,9  shall  be  deemed  to  be  a 
deposition  within  the  meaning  of  those  sections  respec- 
tively. 

Provided  that — 

(a)  a  person  shall  not  be  liable  to  be  convicted  of  the 
offence  unless  the  testimony  admitted  by  virtue  of  this 
section  and  given  on  behalf  of  the  prosecution  is  cor- 
roborated by  some  other  material  evidence  in  support 
thereof  implicating  the  accused ;  and 

(6)  any  child  whose  evidence  is  received  as  aforesaid 
and  who  shall  wilfully  give  false  evidence  shall  be  liable 
to  be  indicted  and  tried  for  such  offence,  and  on  convic- 
tion thereof  may  be  adjudged  such  punishment  as  is  pro- 
vided for  by  section  11  of  the  Summary  Jurisdiction  Act, 
1879,  in  the  case  of  juvenile  offenders.10 

8  See  Article  140.  9  See  Article  141b. 

1057  &  58  Vict.  c.  41,  s.  15. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  579 

Article  123b. 

unsworn  evidence  of  a  barrister. 

A  barrister  giving  evidence  in  Court,  in  proceedings 
where  evidence  is  usually  given  by  affidavit,  as  to  his  action 
in  his  professional  capacity  in  previous  proceedings  makes 
a  statement  from  his  seat  in  Court  without  an  oath  having 
been  administered  to  him.11 

Article  124. 
form  of  oaths  ;  by  whom  they  may  be  administered. 

Oaths  are  binding  which  are  administered  in  such  form 
and  with  such  ceremonies  as  the  person  sworn  declares  to 
be  binding.12 

Any  person  to  whom  an  oath  is  administered,  who  so 
desires,  may  be  sworn  with  uplifted  -hand  in  the  form  and 
manner  usual  in  Scotland.13 

Every  person  now  or  hereafter  having  power  by  law  or 
by  consent  of  parties  to  hear,  receive,  and  examine  evi- 

11  Hickman  v.  Berens,  [1895],  2  Ch.  p.  638,  following  the  previous 
unreported  ease  of  Kempshall  v.  Holland  (but  see  98  L.  T.  p.  489, 
Leading  Article),  decided  in  the  Court  of  Appeal.  In  the  former 
case  the  original  proceedings  took  place  before  an  official  referee;  in 
both  the  barrister's  statement  was  in  substitution  for  an  affidavit. 
See  Article  111,  and  Note  XLII. 

12  1  &  2  Vict.  c.  105.  For  the  old  law,  see  Omichund  v.  Barber, 
1745,  1  S.  L.  C,  7th  Ed.,  445. 

13  51  &  52  Vict.  c.  46,  s.  5. 


580  A  DIGEST  OF  [Pabt  III. 

dence,  is  empowered  to  administer  an  oath  to  all  such 
witnesses  as  are  lawfully  called  before  him.14 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  371;  1 
Wharton  on  Evidence,  sec.  387. 

On  the  swearing  of  Mohammedans,  Brahmins,  Chinese,  etc. —  State 
v.  Chiagk,  92  Mo.  395;  Bow  v.  People,  160  111.  438;  Newman  v.  New- 
man, 7  N.  J.  Eq.  26 ;  Com.  v.  Jarboe,  89  Ky.  143. 

New  Jersey. 
Form  of  oath. —  Oath  substantially  in  form  prescribed.     State  v. 
Dayton,  23  N.  J.  L.  49. 
Jewish  oath. —  Newman  v.  Newman,  7  N.  J.  Eq.  26. 

Pennsylvania. 

The  oath  may  be  administered  to  a  witness  by  the  interpreter. 
Com.  v.  Jongrass,  181  Pa.  172. 

Article  125. 

how  oral  evidence  may  be  taken. 

Oral  evidence  may  be  taken15  (according  to  the  law  re- 
lating to  civil  and  criminal-  procedure)  — 

In  open  court  upon  a  final  or  preliminary  hearing; 

Or  out  of  court  for  future  use  in  court — 

(a)  upon  affidavit, 

(&)   under  a  commission,16 

14  14  &  15  Vict.  c.  99,  s.  16. 

1!>  As  to  civil  procedure,  see  Order  XXXVII.  to  Judicature  Act  of 
1875.  As  to  criminal  procedure,  see  11  &  12  Vict.  c.  42,  for  prelim- 
inary procedure,  and  the  rest  of  this  chapter  for  final  hearings. 

lfj  The  law  as  to  commissions  to  take  evidence  is  as  follow-:  The 
root  of  it  is  13  Geo.  III.  e.  53.     Sect.  40  of  this  Act  provides  for  the 


Chap.  XVI.]  TEE  LAW  OF  EVIDENCE.  581 

(c)  before  any  officer  of  the  Court  or  any  other  person 
or  persons  appointed  for  that  purpose  by  the  Court 
or  a  judge  under  the  Judicature  Act,  1875,  Order 
XXXVII.,  Rule  5. 

Oral  evidence  taken  upon  a  preliminary  hearing  may,  in 
the  cases  specified  in  Articles  140-142,  he  recorded  in  the 
form  of  a  deposition,  which  deposition  may  he  used  as 
a  documentary  evidence  of  the  matter  stated  therein  in 
the  cases  and  on  the  conditions  specified  in  Chapter  XVII.. 

Oral  evidence  taken  in  open  court  must  be  taken  accord- 
ing to  the  rules  contained  in  this  chapter  relating  to  the 
examination  of  witnesses. 

17Oral  evidence  taken  under  a  commission  must  be  taken 
in  the  manner  prescribed  by  the  terms  of  the  commission. 

18  Oral  evidence  taken  under  a  commission  must  be 
taken  in  the  same  manner  as  if  it  were  taken  in  open 
court;  but  the  examiner  has  no  right  to  decide  on  the  va- 

issne  of  a  commission  to  the  Supreme  Court  of  Calcutta  (which  waa 
first  established  by  that  Act)  and  the  corresponding  authorities  at 
Madras  and  Bombay  to  take  evidence  in  cases  of  charges  of  misde- 
meanour brought  against  Governors,  &c,  in  India  in  the  Court  of 
Queen's  Bench.  Sect.  42  applies  to  parliamentary  proceedings,  and 
s.  44  to  civil  cases  in  India.  These  provisions  have  been  extended  to 
all  the  colonies  by  1  Will.  IV.  c.  22,  and  so  far  they  relate  to  civil 
proceedings  to  the  world  at  large.  3  &  4  Vict.  c.  105,  gives  a  similar 
power  to  the  Courts  at  Dublin.  See  as  to  cases  in  which  commissions 
will  not  be  granted,  In  re  Boyce,  Crofton  v.  Crofton,  1882,  20  Ch.  Div. 
760;  and  Berdan  v.  Greenwood,  1880,  ibid.,  in  note,  764;  also  Langen 
v.  Tate,  1883,  24  Ch.  Div.  322;  Lawson  v.  Vacuum  Brake  Co.,  1884; 
27  Ch.  Div.  137. 

"Taylor,  s.  513. 

l8/d.'s.  512. 


582  A  DIGEST  OF  [Part  III. 

lidity  of  objections  taken  to  particular  questions,  but  must 
record  the  questions,  the  fact  that  they  were  objected  to, 
and  the  answers  given. 

19  If  secondary  evidence  of  the  contents  of  any  docu- 
ment is  not  objected  to  on  the  taking  of  a  commission  it 
cannot  be  objected  to  afterwards. 

20  Oral  evidence  given  on  affidavit  must  be  confined  to 
such  facts  as  the  witness  is  able  of  his  own  knowledge  to 
prove,  except  on  interlocutory  motions,  on  which  state- 
ments as  to  his  belief  and  the  grounds  thereof  may  be  ad- 
mitted. The  costs  of  every  affidavit  unnecessarily  setting 
forth  matters  of  hearsay  or  argumentative  matter,  or 
copies  of  or  extracts  from  documents,  must  be  paid  by 
the  party  filing  them. 

21  When  a  deposition,  or  the  return  to  a  commission,  or 
an  affidavit,  or  evidence  taken  before  an  examiner,  is  used 
in  any  court  as  evidence  of  the  matter  stated  therein,  the 
party  against  whom  it  is  read  may  object  to  the  reading 
of  anything  therein  contained  on  any  ground  on  which 
he  might  have  objected  to  its  being  stated  by  a  witness 
examined  in  open  court,  provided  that  no  one  is  entitled 
to  object  to  the  reading  of  any  answer  to  any  question 
asked  by  his  own  representative  on  the  execution  of  a 
commission  to  take  evidence. 

10  Robinson  v.  Davies,  1879,  5  Q.  B.  D.  26. 

20  R.  S.  C,  Order  XXXVIII.,  3. 

21  Taylor,  8.  548.     Hutchinson  v.  Bernard,  1836,  2  Moo.  &  Rob.  1. 


Chap.  XVL]  THE  LAW  OF  EVIDENCE.  583 


AMERICAN   NOTE. 
General. 

An  answer  is  not  evidence  if  the  oath  is  waived.  Bickerdike  v. 
Allen,  157  111.  95. 

Unverified  pleas  are  not  evidence.  Shepard  v.  Wells,  70  111. 
App.  72. 

A  sworn  answer  in  chancery  has  no  weight  as  evidence.  Beimel 
v.  Brown,  136  111.  App.  586,  593. 

Affidavits. —  As  to  affidavits  generally,  see  Hurd's  Rev.  Stat., 
chap.   110. 

Affidavits  are  prima  facie  evidence  of  book  accounts  on  default. 
Hurd's  Rev.  Stat.,  chap.  110,  sec.  38,  p.   1289. 

Ex  parte  affidavits  are  admissible  only  by  consent.  Bressler  v. 
McCune,  56  111.  475. 

An  affidavit  in  support  of  an  application  for  change  of  venue  is 
not  admissible.    Ohio,  etc.,  Ry.  Co.  v.  Levy,  134  Ind.  343. 

New  Jersey. 

Depositions.—  G.  S.  1895,  "  Evidence,"  25-46,  63,  64,  66,  67. 

Commissions  out  of  courts  of  other  States.  G.  S.  1895,  "  Evi- 
dence," 49,  50. 

Commissions  to  take  testimony  as  to  the  execution  of  a  will. 
G.  S.  1895,  "  Orphans'  Courts,"  253. 

Depositions  in  contested  election  cases.  G.  S.  1895.  "  Elections," 
118-121. 

In  divorce,  defendant  not  appearing.     Laws  of  1902,  chap.   135. 

Depositions. —  The  execution,  return,  and  use  of  depositions. 
Perry  v.  Thompson,  1  Harr.  72;  Laiorence  v.  Finch,  17  N.  J.  Eq. 
234;  Saltar  v.  Applegate,  3  Zab.  115;  Ludlam  v.  Broderick,  3  Green, 
269;   Moran  v.  Green,   1   Zab.  562. 

A  deposition  taken  in  a  former  action  between  the  same  parties 
is  not  of  itself  admissible.     Trimmer  v.  Larrison,  3  Hal.  56. 

Depositions  taken  when  no  suit  is  pending  excluded.  Lummis  v. 
Slratton,  Pen.  245;  Layton  v.  Cooper,  Pen.  65;  Bickman  v.  Pissant, 
Coxe,  220;  Camden  d  Amboy  R.  Co.  v.  Stewart,  19  N.  J.  Eq.  343, 
21  N.  J.  Eq.  484. 

Copies  of  a  church  parish  register  admissible  in  evidence  as  part 
of  a  deposition.     Hancock  v.  Catholic  Benev.  Legion,  67  N".  J.  L.  614. 


584  A  DIGEST  OF  [Part  III. 

For  any  part  of  a  deposition  to  be  admissible  the  whole  must  be 
before  the  court.     Lanahan  V.  Lawton,  50  N.  J.  Eq.  276,  79*6. 

Testimony  de  bene  esse. —  G.  S.  1895,  "  Evidence,"  59,  64 ;  Laws 
of  1902,  chap.  143;   Laws  of  1903,  chap.  135. 

Testimony  of  a  party  to  the  suit  may  be  taken  by  commission  or 
de  bene  esse.     G.  S.  1895,  "Evidence,"  11. 

Reasons  for  taking  a  deposition  de  bene  esse,  and  the  notice,  must 
appear  in  the  commissioner's  certificate.  Oral  testimony  not  admis- 
sible.    Case  v.  Garret  son,  54  N.  J.  L.  42. 

Maryland. 

Depositions  in  general. —  Jackson  v.  Jackson,  80  Md.  176;  Cover 
v.  Smith,  82  Md.  586. 

Commissions. —  Commissions  to  take  testimony  in  the  State.  P.  G. 
L.  1888,  art.  35,  sees.  17-29. 

Commissions  to  take  testimony  out  of  the  State.  P.  G.  L.  1SSS, 
art.  35,  sees.  15,  16. 

Commissions  to  take  evidence  from  other  States.  P.  G.  L.  1888, 
art.    35,   sec.    34. 

Boundaries. —  Commissions  to  perpetuate  boundaries  of  lands. 
P.  G.  L.  1888,  art.  35,  sees.  30-33. 

Seamen. —  Evidence  of  seamen  taken  de  bene  esse.  P.  G.  L.  1888, 
art.   84.  sec.   9. 

Notice  of  the  issuance  of  a  commission. —  B.  &  O.  R.  Co.  v. 
State,  60  Md.  449;  Tracers  v.  Waters,  35  Md.  531;  Cherry  v.  Baker, 
17  Md.  75;  Law  v.  Scott,  5  H.  &  J.  438;  Hatton  v.  McClish,  6  Md. 
407:  Young  v.  Mackall,  4  Md.  362. 

Execution  of  the  commission. —  Ecker  v.  McAllister,  45  Md.  290; 
Insurance  Co.  v.  Bossiere,  9  G.  &  J.  121;  Burner  v.  Biercy,  40  Md. 
212:  Matthews  v.  Dare,  20  Md.  248;  Walkup  v.  Bratt,  5  H.  &  J.  51. 

Foreign  commissions. —  Little  v.  Edwards,  69  Md.  499;  Goodman 
v.  Wineland,  61  Md.  449;  Sewell  v.  Gardner,  48  Md.  178;  Crichton 
v.  Smith,  34  Md.  42. 

Depositions  de  bene  esse. —  Quynn  v.  Carroll,  22  Md.  288;  Wil- 
liams v.  Banks.  5  Md.  198:  Matthews  v.  Dare.  20  Md.  248:  Collins 
v.  Elliott,  1  IT.  &  J.  1  :  Brydcn  v.  Taylor,  2  H.  &  J.  396;  Lingan  v. 
Henderson,  1  Bland,  236   (aged  and  infirm  witness). 

Pennsylvania. 

Depositions. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Evidence,"  sees. 
1-.":  "Justices  of  the  Peace,"  sees.  S6-96 ;  "Witnesses,"  sec.  19. 


Chap.  XVI.]  TEE  LAW  OF  EVIDENCE.  585 

Depositions. —  Brown  v.  Com.,  73  Pa.  321. 

Deposition  of  a  dying  man  is  not  admissible  if  there  was  no  op- 
portunity for  cross-examination.     Pringle  v.  Pringle,  59  Pa.  281. 

Deposition  admissible  after  the  party's  death.  Evans  v.  Reed, 
78  Pa.  415;  Speyerer  v.  Bennett,  79  Pa.  445. 

The  deposition  of  one  who  has  lost  his  memory  from  old  age  is 
admissible.     Emig  v.  Diehl,  76  Pa.  359. 

A  deposition  taken  at  the  instance  of  one  party  may  be  given  in 
evidence  by  the  other.  O'Connor  v.  Iron  Mt.  Co.,  56  Pa.  234;  Smith 
v.  Austin,  4  Brewst.  89. 

When  objections  to  a  deposition  must  be  made.  Hilt,  v.  Canpeld, 
63  Pa.  77. 

Evidence  of  a  witness  before  a  coroner  taken  down  by  a  bystander 
not  admissible.     McLain  v.  Com.,  99  Pa.  86. 

Article  126.* 

examination  in  chief,  cross-examination,  and 
re-examination. 

Witnesses  examined  in  open  court  must  be  first  exam- 
ined in  chief,  then  cross-examined,  and  then  re-examined. 

Whenever  any  witness  has  been  examined  in  chief,  or 
has  been  22  intentionally  sworn,  or  has  made  a  promise  and 
declaration  as  hereinbefore  mentioned  for  the  purpose  of 
giving  evidence,  the  opposite  party  has  a  right  to  cross- 
examine  him ;  but  the  opposite  party  is  not  entitled  to 
cross-examine  merely  because  a  witness  has  been  called  to 
produce  a  document  on  a  subpoena  duces  tecum,  or  in 
order  to  be  identified.  After  the  cross-examination  is 
concluded,  the  party  who  called  the  witness  has  a  right 
to  re-examine  him. 

The  Court  may  in  all  cases  permit  a  witness  to  be  re- 
called either  for  further  examination  in  chief  or  for  fur- 

*  See  Note  XLV. 
22  See  Cases  in  Taylor,  s.  1429. 


586  A  DIGEST  OF  [Part  III. 

ther  cross-examination,  and  if  it  does  so,  the  parties  have 
the  right  of  further  cross-examination  and  further  re- 
examination respectively. 

If  a  witness  dies,  or  becomes  incapable  of  being  further 
examined  at  any  stage  of  his  examination,  the  evidence 
given  before  he  became  incapable  is  good.23 

If  in  the  course  of  a  trial  a  witness  who  was  supposed 
to  be  competent  appears  to  be  incompetent,  his  evidence 
may  be  withdrawn  from  the  jury,  and  the  case  may  be  left 
to  their  decision  independently  of  it.24 

AMERICAN   NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  431  et 
seq.;  8  Encyclopaedia  of  Pleading  and  Practice,  p.  70  et  seq. 

Witness  to  produce  document. —  Aiken  v.  Martin,  11  Pai.  499; 
Calderon  v.  O'Donahue,  47  Fed.  Rep.  39;  Stiles  v.  Allen,  5  Allen 
(Mass.),  320. 

Order  of  proof  discretionary. —  The  order  of  testimony  is  discre- 
tionary with  the  judge.  Bruce  v.  Kelly,  7  J.  &  S.  27.  See  Foster  v. 
Xewbrough,  58  N.  Y.  481,  reversing  66  Barb.  645 ;  Levy  v.  People,  80 
N.  Y.  327 ;  Neil  v.  Thome,  88  N.  Y.  270 ;  Smith  v.  McGoioan,  3  Barb. 
404;  Staring  v.  Bowen,  6  Barb.  109;  Bedell  v.  Powell,  13  Barb.  183; 
People  v.  Ruloff,  11  Abb.  Pr.  (N.  S.)  245;  Stock  v.  he  Boutiller,  19 
Misc.  Rep.  112,  43  N.  Y.  Supp.  248,  affirming  18  Misc.  Rep.  349; 
Matter  of  Beck,  6  App.  Div.  211;  affirmed,  on  opinion  below,  in  154 
N.  Y.  750 ;  Decker  v.  Gaylord,  35  Hun,  584. 

The  examination  of  witnesses  is  largely  within  the  discretion  of 
the  court.  Griffin  v.  Domas,  22  111.  App.  203;  Smith  v.  Hays,  23 
111.  App.  244. 

Where  a  witness  is  excluded  from  the   courtroom  and  enters  con- 

23  R.  v.  Doolin,  1832,  1  Jebb,  C.  C.  123.  The  judges  compared  the 
case  to  that  of  a  dying  declaration,  which  is  admitted  though  there 
can  be  no  cross-examination. 

24  R.  v.  Whitehead,  1866,  1  C.  C.  R.  33. 


Chap.  XVI.J  THE  LAW  OF  EVIDENCE.  587 

trary  to  the  order  of  the  court,  he  may  be  admitted  as  a  witness  in 
the  discretion  of  the  court.     Bow  v.  People,  160  111.  439. 
.     Evidence  may  be  admitted  for  one  purpose  only  and  not  for  all. 
C,  R.  I.  &  P.  R.  R.  Co.  v.  Clark,  108  111.  113. 

It  is  the  duty  of  the  court  to  exclude  improper  testimony.  Barr 
v.  W.  C.  M.  &  M.  Co.,  5  Brad.  442. 

Evidence  offered  but  excluded  is  not  to  be  considered.  Hcrsey 
v.  West  over,  11  Brad.  197. 

The  court  need  not  allow  the  repetition  of  questions.  Blacking- 
ton  v.  Tebbals,  17  111.  App.  456;  Buck  v.  Haddock,  167  111.  219,  67 
111.  App.  466;   Thomas  v.  Chicago,  152  111.  292. 

One  has  not  the  right  to  have  evidence  repeated.  Buck  v.  Mad- 
docks,  67  111.  App.   466. 

If  there  is  evidence  tending  to  establish  the  cause  of  action  the 
case  should  go  to  the  jury.  C,  M.  <£•  St.  P.  Ry.  Co.  v.  Walsh,  157 
111.   072. 

In  order  to  fix  the  date,  the  whole  of  an  ordinance  need  not  be 
introduced.     Chicago  v.  W.  &  L.  Co.,  14  Brad.  219. 

The  court  decides  whether  there  is  any  evidence;  the  jury  as  to 
the  weight  of  evidence.  Luxen  v.  C.  cG  G.  T.  Ry.  Co.,  69  111.  App. 
648. 

Re-examination. —  Morton  v.  Zwierzykoicski,  192  111.  328,  61  N.  E. 
413,  affirming  91  111.  App.  462;  Ackerstadt  v.  Chicago  City  Ry.  Co., 
194  111.  616,  62  N.  E.  SS4,  affirming  94  111.  App.  130. 

Recalling  witness. —  Recalling  witnesses  is  discretionary  with  the 
court.     Russel  v.  Martin,  2  Scam.  493. 

The  court  may  refuse  to  allow  the  witness  to  be  recalled  for  the 
purpose  of  further  cross-examination.  C.  &  A.  Ry.  Cu.  v.  Eaton, 
62  N.  E.  784,  affirming  96  111.  App.  570. 

As  to  form  of  questions,  see  C.  &  A.  Ry.  Co.  v.  Eaton,  62  N.  E. 
784,  affirming  96  111.  App.  570;  Illinois  Steel  Co.  v.  Ostrowski,  194 
111.  376,  62  N.  E.  822,  affirming  93  111.  App.  57. 

A  question  cannot  assume  the  existence  of  facts  not  proved.  Erie 
ct-  P.  D.  v.  Cecil,  112  111.  180,  186;  Mida  v.  Geissman,  17  111.  App. 
207,  211;  Myer  v.  Krohn,  114  111.  581. 

The  court  should  not  ordinarily  interfere  in  the  examination  of 
a  witness.  The  examination  is  not  generally  the  province  of  the 
court.     Miland  v.  Meiswinkel,  82  111.  App.  522. 

The  court  may  ask  questions  and  allow  cross-examination  based 
upon  them.  Cooper  v.  Randall,  59  111.  317;  Foreman  v.  Baldwin, 
24  111.  298,  306. 


5S8  A  DIGEST  OF  [Part  III. 

Demurrer  to  evidence. —  Rothchild  v.  Brusche,  131  111.  2G5. 

Offering  evidence. —  Evidence  must  be  offered  specifically.  Russell 
v.  Luke,  68  111.  App.  440. 

As  to  the  effect  of  withholding  evidence,  see  Bornhofen  v.  Greene- 
baum,  G8  111.  App.  645. 

Objections. —  Objections  to  evidence  must  be  made  at  the  trial. 
Wilkinson  v.  Ward,  42  111.  App.  541;  McCartney  v.  Loomis,  61  111. 
App.  364. 

Objections  to  evidence  not  made  are  waived.  Allen  v.  Mason,  17 
111.  App.  3 IS,  320. 

Objections  to  be  available  on  appeal  must  be  specific.  Hunting- 
ton v.  Aurand,  70  111.  App.  28;  P.  S.  P.  Co.  v.  Sharp,  67  111.  App. 
477;   C.  &  A.  Ry.  Co.  v.  Logue,  58  111.  App.  142. 

Motion  to  strike  out. —  If  a  question  be  proper,  irrelevant  portion* 
of  the  answer  are  to  be  stricken  out  on  motion.  A.  M.  U.  Ex.  Co. 
v.  Gilbert,  57  111.  468. 

Objections  to  be  specific. —  Bank  v.  Colter,  61  Ind.  153;  City  v. 
Lowcry,  74  Ind.  520;  Farnam  v.  Lauman,  73  Ind.  568;  Railway  Co. 
v.  Parker,  97  Ind.  91 ;  Underwood  v.  Linton,  54  Ind.  468.  Those 
on  the  ground  that  the  evidence  is  improper,  immaterial,  or  in- 
competent, are  too  indefinite.  Noftsger  v.  Smith,  6  Ind.  App.  54; 
McCloskey  v.  Davis,  S  Ind.  App.  190;  Litten  v.  Wright  School  Tp.y 
127  Ind.  81;  Evansville,  etc.,  R.  R.  Co.  v.  Fcttig,  130  Ind.  61; 
Miller  v.  Dill,  149  Ind.  326:  Mortgage  Trust  Co.  v.  Moore.  150 
Ind.  465;  Sicaim  v.  Sicaim,  134  Ind.  596;  Bass  v.  State,  136  Ind. 
165;  Keesling  v.  Doyle,  8  Ind.  App.  43;  Baldwin  v.  Runyan,  8 
Ind.  App.  344;  State  ex  rel.  v.  Hughes,  19  Ind.  App.  266;  Rhea 
v.  Crunk,  12  Ind.  App.  23;  Board,  etc.  v.  O'Connor,  137  Ind.  622; 
Indiana,  etc.,  Co.  v.  Wagner,  138  Ind.  658;  TToss  v.  Slate  ex  rel., 
9  Ind.  App.  294;  Diether  v.  Ferguson,  etc..  Co.,  9  Ind.  App.  173; 
Wabash,  etc.,  Union  v.  James,  8  Ind.  App.  449;  Lankford  v.  State, 
144  Ind.  428;  Stratton  v.  Lockhart,  1  Ind.  App.  380;  Pennsylvania 
Co.  v.  Horton.  132  Ind.  189;  Ohio,  etc.,  Ry.  Co.  v.  Wrape,  4  Ind. 
App.  108;  Chicago,  etc.,  R.  R.  Co.  v.  Champion,  9  Ind.  App.  510; 
Crabs  v.  Mickle,  5  Ind.  145. 

Admission  of  evidence  conditionally. —  Where  the  competency  of 
evidence  depends  upon  proof  of  other  facts,  it  may  be  admitted  on 
condition  that  such  proof  shall  be  supplied.  Shcpard  v.  Gobcn,  142 
Ind.  318. 

Slang  in  question. —  A  question  should  not  include  an  obscure 
slang  phrase.     Whitney  v.  State,  154  Ind.  573. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  589 

Irresponsive  answers. —  Irresponsive  answers  are  to  be  stricken 
out.     Shelley  v.  Bail,  27  Ind.  App.  87. 

Separating  witnesses. —  Witnesses  may  be  separated.  Xenia  Real 
Estate  Co.  v.  Macy,  147  Ind.  568. 

As  to  separating  witnesses,  see  State  v.  David,  25  Ind.  App.  296. 

Eill  of  exceptions. —  As  to  setting  out  evidence  in  a  bill  of  excep- 
tions, see  Bank  v.  Colter,  61  Ind.  153;  Nudd  v.  Holloway,  43  Ind. 
366;   Watt  v.  De  Haven,  55  Ind.  128. 

As  to  bills  of  exceptions,  see  Anderson  v.  Lane,  32  Ind.  102; 
Burdick  v.  Hunt,  43  Ind.  381;  Lee  v.  State,  88  Ind.  256;  Citizens' 
Co.  v.  Harris,  108  Ind.  392;  Railway  Co.  v.   Quick,  109  Ind.  295. 

Practice. —  A  person  may  choose  his  own  way  in  introducing  evi- 
dence. Bums  v.  Harris,  66  Ind.  536;  Clawson  v.  Loicry,  7  Blackf. 
140;  Ginn  v.  Collins,  43  Ind.  271. 

The  mode  of  testifying  is  subject  to  the  discretion  of  the  court. 
Snyder  v.  Nations,  5  Blackf.  295. 

If  evidence  is  competent  as  to  some  parties  and  incompetent  as  to 
others,  the  court  should  be  requested  that  it  should  be  considered  as 
against  the  former  one.  Smith  v.  Weiser,  11  Ind.  App.  468; 
Thistleweight  v.  Thistlewcight,  132  Ind.  355;  Benjamin  v.  Mc- 
Elwaine  Co.,  10  Ind.  App.  76. 

Written  evidence  does  not  go  to  the  jury-room.  Nichols  v.  State, 
65  Ind.  512. 

Contracts  sued  on  may,  if  the  court  so  rules,  be  taken  to  the  jury- 
room.    Snyder  v.  Braden,  58  Ind.  143. 

As  to  fees  of  witnesses,  see  Schlicht  y.  State,  56  Ind.  173;  Good- 
■win  v.  Smith,  68  Ind.  301;  Railroad  Co.  v.  Johnson,  108  Ind.  126. 

The  jury  pass  upon  the  weight  of  evidence.  Durham  v.  Smith, 
120  Ind.  463. 

Anticipating  defense. —  Evidence  anticipating  the  defense  is  no 
part  of  the  plaintiff's  original  case  and  is  properly  excluded  when 
offered  as  such.  Barnett  v.  Farmers'  Mut.  Fire  Ins.  Co.,  115  Mich. 
247. 

Examination  by  court. —  The  court  may.  in  taking  up  a  witness 
to  examine  him  in  an  improper  manner,  commit  error.  Darrow  v. 
Pierce.  91  Mich.  63,  51  X.  W.   813. 

Attendance  of  witnesses. —  The  attempt  to  prevent  the  attendance 
of  one  as  a  witness  who  has  not  yet  been  subpoenaed  is  a  contempt 
of  court.     Montgomery  v.  Muskegon  Circuit  Judge,  100  Mich.  436. 


590  A  DIGEST  OF  [Pabt  III. 

The  court  has  power  to  detain  witnesses  in  a  criminal  trial  upon 
a  proper  showing,  but  the  witnesses  have  a  right  to  be  heard  before 
committed.     Lewellen's  Case,  104  Mich.  318. 

Reopening  case. —  The  court  at  its  discretion  may  reopen  the  case 
and  permit  the  plaintiff  to  introduce  more  direct  testimony  after 
the  defendant  has  rested.  This  practice  is  not  approved.  M inkle y 
v.  Spring  swells  Tp.,  113  Mich.  347. 

Failure  to  produce  evidence. —  Failure  to  produce  evidence  within 
the  control  of  a  party,  and  which  would  naturally  be  produced,  may 
be  commented  upon  before  the  jury.  Battersbee  v.  Calkins,  8  Det. 
L.  N.  778,  87  N.  W.  760. 

New  Jersey. 

Recalling  witnesses. —  With  permission  of  the  court,  a  witness  may 
be  recalled  for  re-examination  on  new  matter.  Osborne  v.  O'Reilly, 
34   N.    J.    Eq.    60. 

Order  of  proof. —  Order  of  proof  in  discretion  of  the  trial  court. 
Donnelly  v.  State,  20  N.  J.  L.  GUI;  Bodee  v.  Stale,  57  X.  J.  L.  140. 

Objecting  to  evidence. —  Time  objection  must  be  made.  An  objec- 
tion made  after  the  incompetent  question  is  answered  conies  too 
late.     Cunningham  v.  State,  Gl   X.  J.  L.  67. 

A  verdict  will  not  be  set  aside  on  the  ground  that  improper  evi- 
dence was  received  when  no  objection  was  made  to  it3  admission. 
Den.  v.  Geiger,  4  Hal.  225;  Den.  v.  Doicnam,  1  Green,  135;  Coil  v. 
Wallace,  4  Zab.  291;  Meeker  v.  Boijlan,  28  X.  J.  L.  274;  Dare  v. 
Moore,  Coxe.  94. 

An  objection  to  evidence  without  stating  ground  therefor  is  disre- 
garded.    Mooney  v.  Peck,  49  X.  J.  L.  232. 

When  offered  evidence  has  been  excluded,  the  exception  must  state 
the  grounds  upon  which  the  offer  was  made.  Dale  v.  See,  51  X.  J. 
L.  378. 

On  error  a  party  cannot  contend  that  evidence  was  not  admissi- 
ble for  reasons  not  set  up  at  tbe  trial.  Hustis  v.  Banister  Co.,  64 
X.  J.  L.  279. 

Unresponsive  answers. —  Unresponsive  answers  may  be  stricken  out 
on  motion  of  the  party  asking  the  questions.  Guild  v.  Aller,  2  Harr. 
310. 

An  answer  irrelevant  in  part  only  will  be  stricken  out  only  in 
part.     Delaney  v.  State,  51  N.  J.  L.  37. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  591 

Last  paragraph  of  test. —  Hon  fort  v.  Roioland,  38  N.  J.  Eq.  181. 

Examination  of  witnesses  in  chancery. —  G.  S.  1895,  "Chancery," 
43-46,  132. 

Maryland. 

Order  of  proof. —  A  party  may  introduce  his  evidence  in  the  order 
he  chooses,  and  cannot  be  compelled  to  state  in  advance  what  his 
subsequent  evidence  will  be.  Patterson  v.  Crowther,  70  Md.  124; 
Life  Ins.  Co.  v.  Dempsey,  72  Md.  288;  Jerry  v.  Townshend,  9  Md. 
145;  Plank  Road  Co.  v.  Bruce,  6  Md.  457. 

Usually  the  plaintiff  may  complete  his  evidence  before  the  defend- 
ant has  a  right  to  introduce  any,  but  in  libel  the  defendant  may 
introduce  evidence  to  show  that  the  communication  was  privileged 
before  the  plaintiff  has  concluded.     Maurice  v.  Worden,  54  Md.  233. 

The  trial  court  has  discretion  to  allow  evidence  to  be  introduced 
at  a  later  stage  than  that  at  which  it  should  have  been.  Railroad 
Co.  v.  Slack,  45  Md.   161. 

No  appeal  lies  from  the  orders  of  the  trial  court  on  matters  of  the 
order  of  proof.  Bannon  v.  War  field,  42  Md.  22;  Lurssen  v.  Lloyd, 
76  Md.  360. 

Recalling  a  witness. —  The  court  has  discretion  to  recall  a  witness 
to  state  what  his  testimony  was.     Green  v.  Ford,  35  Md.  82. 

The  court  has  discretion  to  allow  a  witness  to  be  recalled  for 
examination  on  matters  concerning  which  he  has  already  testified. 
Trustees  v.  ffcise,  44  Md.  453;  Girault  v.  Adams,  61  Md.  1;  Young 
v.  Omohundro,  69  Md.  424;  Swartz  v.  Chickering,  58  Md.  290;  Bar- 
num  v.  Barnuni,  42  Md.  251. 

Witnesses  may  be  recalled  to  the  stand  within  the  discretion  of 
the  trial  court.  Brown  v.  State,  72  Md.  46S ;  Waters  v.  Waters,  35 
Md.  531;   Schioartze  v.  Yearly,  31  Md.  270. 

Reopening  case. —  A  refusal  of  the  trial  court  to  allow  further  evi- 
dence to  be  presented  after  the  case  has  been  closed  is  no  ground 
for  reversal.  Rickctls  v.  Pendleton,  14  Aid.  320;  Sellers  v.  Zim- 
mermann,  18  Md.  255;   Williams  v.  Brailsford,  25  Md.  12G. 

Tha  trial  court  lias  discretion  to  allow  a  party  to  introduce  fur- 
ther testimony  after  he  has  closed  his  case.  Berry  v.  Derwart.  55 
Md.  66.  Even  though  a  motion  has  been  made  based  upon  the  in- 
sufficiency of  the  evidence.     Ollendorff  v.  Kanne,  66  Md.  495. 

Death  of  witness  during  examination. —  A  deposition  is  admissible 
although  the  witness  died  before  cross-examination.  Scott  v.  Mc- 
Cann,  76  Md.  47. 


592  A  DIGEST  OF  [Part  III. 

Mode  of  examining  witness. —  Appeal  does  not  lie  from  the  action 
of  the  trial  court  in  allowing  further  examination-in-chief  after 
cross-examination.     New  York,  etc.,  li.   Co.  v.  Jones,   94  Md.   24. 

The  same  question  may  be  asked  a  witness  more  than  once,  in  the 
discretion  of  the  trial  court.     Brown  v.  State,  72  Md.  477. 

A  witness'  attention  may  be  called  to  a  portion  of  his  testimony 
which  he  left  doubtful  in  order  to  make  it  clear.  Frisby  v.  Park- 
hurst,  29  Md.   58. 

Excluding  witnesses  from  courtroom. —  Witnesses  may  be  ex- 
cluded from  the  courtroom,  but  a  witness'  disobedience  of  the  court's 
order  affects  the  weight  of  his  testimony  and  not  its  competency,  un- 
less such  disobedience  was  by  the  fault  of  the  party  calling  the  wit- 
ness.    Parker  v.  State,  07  Md.  329. 

Offers  of  evidence. —  The  court  is  under  no  duty  of  passing  on  an 
offer  of  evidence  when  there  are  no  witnesses  to  sustain  it.  Esch- 
bach  v.  Hurtt,  47  Md.  61. 

An  objection  to  evidence  on  the  ground  that  it  is  offered  at  an 
improper  time  is  within  the  discretion  of  the  trial  court.  Cren- 
shaw v.  Stye,  52  Md.   140. 

Objections  to  evidence  en  masse. —  A  general  objection  to  a  mass 
of  evidence  should  be  overruled  if  any  part  of  it  is  admissible. 
Burgoon  v.  BixJer,  55  Md.  384;  Everett  v.  ~SJeff,  28  Md.  176;  Morri- 
son v.  Whiteside,  17  Md.  452;  Budd  v.  Brooke,  3  Gill,  198;  Curtis 
v.  Moore,  20  Md.  93;  Levy  v.  Taylor,  24  Md.  282;  Oelrichs  v.  Ford, 
21  Md.  489;  Wheeler  v.  Harrison,  94  Md.  147;  Scarlett  v.  Academy  of 
Music,  46  Md.   132. 

A  general  exception  to  the  competency  of  a  witness  will  be  over- 
ruled if  he  is  competent  for  any  purpose.  Brewer  v.  Bowersox,  92 
Md.    567. 

If  offered  evidence  be  admissible  for  any  one  of  several  purposes 
mentioned,  a  general  objection  to  it  will  be  overruled.  Xutwell  v. 
Tongue,   22   Md.   410. 

Time  for  objecting. —  Objections  to  evidence  must  be  made  when 
it  is  offered  or  within  a  reasonable  time  thereafter;  they  come  too 
late  after  argument  to  the  jury  has  begun.  Lamb  v.  Taylor,  67  Md. 
85:   Bull  v.  Schuberth.  2  Md.  38;  Dent  v.  Hancock,  5  Gill,  120. 

When  evidence  has  been  introduced  and  prayers  based  upon  it, 
an  objection  to  its  admissibility  is  too  late.  Davis  v.  Patton,  19 
Md.   120:   Cecil  Bonk  v.  Heahl.  25  Md.  562. 

The  right  may  be  reserved  to  object  to  evidence  after  the  evidence 
has  been  closed.     Burton  Coal  Co.  v.  Cox,  39  Md.   1. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  593 

When  a  question  is  improper,  objection  should  be  made  before  the 
question  is  answered;  but  if  an  answer  is  improper,  it  may  be 
stricken  out  on  motion.     B.  &  0.  R.  Co.  v.  Shipley,  39  Md.  251. 

Evidence  not  objected  to. —  When  evidence  has  been  admitted  with- 
out objection  it  ought  to  be  given  as  much  weight  as  if  it  were  ad- 
missible according  to  the  rules  of  evidence.  Bank  v.  Duvall,  7 
G.  &  J.  78;  Slinghiff  v.  Builders'  Supply  Co.,  89  Md.  557. 

Evidence  which  has  not  been  objected  to  at  the  trial  will  be 
treated  on  appeal  as  admissible.     Atwell  v.  Grant,  11  Md.  101. 

Admitting  evidence  subject  to  exception. — When  evidence  has  been 
admitted  subject  to  objection,  such  objection  must  be  made  either 
before  or  at  the  end  of  the  testimony.  Roberts  v.  Bonaparte,  73 
Md.   191. 

Assurance  of  counsel  that  evidence  is  relevant. —  Evidence  seem- 
ingly irrelevant  may  be  admitted  on  the  assurance  of  counsel  that 
his  subsequent  evidence  will  show  its  relevancy.  Davis  v.  Calvert, 
5  G.  &  J.  269. 

If  counsel's  assurance  is  not  made  good,  the  evidence  will  be  ex- 
cluded on  proper  motion.     Herrick  v.  Sivomley,  56  Md.  439. 

Evidence  admitted  by  agreement. —  The  affidavit  of  a  witness  may 
be  admitted  in  place  of  having  him  orally  examined,  by  agreement 
of  the  parties.     Scaggs  v.  B.  d  W.  R.  Co.,  10  Md.  269. 

Motion  to  strike. —  When  a  question  is  proper  but  the  answer  is 
irrelevant  it  will  be  stricken  out  on  motion.  Brasheurs  v.  Orme, 
93  Md.  442. 

A  motion,  made  after  the  close  of  the  testimony,  to  exclude  evi- 
dence given  without  objection  comes  too  late.  North  Bros.  v.  Mal- 
lory,  94  Md.  305. 

A  motion  to  strike  out  a  mass  of  testimony  will  be  denied  if  any 
of  it  was  proper.     Walker  v.  Schindel,  58  Md.  360. 

Irresponsive  answers. —  Answers  that  are  not  responsive  to  the 
question  may  be  stricken  out  on  motion.  '  May  field  v.  Kilgonr,  31 
Md.  240;  Wise  v.  Ackerman,  76  Md.  375. 

Withdrawing  evidence. —  Where  evidence  has  been  admitted  over 
objection,  the  party  introducing  it  may  before  the  case  is  argued 
withdraw  it  from  the  consideration  of  the  jury.  Life  Ins.  Co.  v. 
Martins,  32  Md.  310;  Littig  v.  Birkestack.  38  Md.  158. 

Rebuttal. —  Evidence  which   could  have   been   introduced   in   chief 
is  not  admissible  in  rebuttal.     Cumb.  &  Pa.  R.  Co.  v.  Slack.  45  Md. 
161;  Bannon  v.  Warfield,  42  Md.  22;  Donohue  v.  Shedrick,  46  Md. 
226;  Davis  v.  Hamblin,  51  Md.  525. 
38 


594  A  DIGEST  OF  [Part  III. 

If  a  plaintiff  offers  evidence  in  rebuttal  of  an  anticipated  defense 
he  must  complete  his  evidence  on  the  subject  then.  Herrick  v. 
Swomley,  56  Md.  439;  Dugan  v.  Anderson,  36  Md.  567. 

Testimony  in  rebuttal  is  not  inadmissible  merely  because  it  is 
inconsistent  with  the  evidence  in  chief.  Whitridge  v.  Rider,  22  Md. 
548. 

The  court  has  discretion  to  allow  evidence  in  rebuttal  that  would 
have  been  more  properly  introduced  at  first,  if  it  has  been  omitted 
inadvertently.     Stirling  v.  Stirling,  64  Md.  138. 

Evidence  that  is  merely  cumulative  is  not  proper  in  rebuttal. 
Brown  v.  Ward,  53  Md.  376. 

The  taking  of  testimony  in  chancery. —  P.  G.  L.  1888,  art.  16,  sees. 
216-233. 

Election  contests. —  How  evidence  is  taken  in  contested  election 
cases.     P.  G.  L.  1888,  art.  33,  sees.  95-106. 

Pennsylvania. 

Order  of  proof. —  The  order  of  evidence  is  in  the  discretion  of  the 
trial  judge.  Collins  v.  Freas,  77  Pa.  493;  Smith  v.  Myler,  22  Pa. 
36;  Lauchner  v.  Rex,  20  Pa.  464;  Garrigues  v.  Harris,  17  Pa.  344; 
Helfrich  v.  Stem,  17  Pa.  143;  Harden  v.  Hays,  14  Pa.  91;  Young  v. 
Edwards,  72  Pa.  257. 

The  court  may  permit  rebuttal  testimony  to  be  given  in  anticipa- 
tion. Carey  v.  Bright,  58  Pa.  70;  Bowers  v.  Still,  49  Pa.  65; 
Levers  v.  Van  Buskirk,  4  Pa.  309;  Schnable  v.  Doughty,  3  Pa.  392; 
Eisenhart  v.  Slaymaker,  14  S.  &  R.   153. 

Evidence  is  generally  not  allowed  in  rebuttal  which  might  have 
been  given  in  chief.  Stetson  v.  Croskey,  52  Pa.  230;  Young  v.  Ed- 
wards, 72  Pa.  257;  Acklin  v.  McCalmont  Co.,  201  Pa.  267.  But 
the  court  has  discretion.  Gaines  v.  Com.,  50  Pa.  319;  Boyle  v.  Mc- 
Kinley,  6  Phila.  172. 

The  accused  was  allowed  to  be  called  for  cross-examination  dur- 
ing the  time  the  State  was  introducing  its  testimony  in  rebuttal. 
Com.  v.  Eisenhoicer.  181  Pa.  470. 

The  court  may  permit  witnesses  to  be  called  out  of  order  and 
after  a  party  has  rested  his  case.     Com.  v.  Wilson,  186  Pa.   1. 

In  divorce  the  respondent  may  call  the  libellant  as  for  cross-exami- 
nation.    Costello  v.   Costello,  191   Pa.  379. 

It  is  in  the  discretion  of  the  court  to  permit  repetition  of  a  for. 
mer  statement  by  a  witness.     Aiken  v.  Stewart,  63  Pa.  30. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  595 

Recalling  witness. —  The  court  may  permit  a  witness  to  be  re- 
called to  give  further  testimony.  Browne  v.  Molliston,  3  Whart. 
129;  Covanhovan  v.  Hart,  21  Pa.  495;  Insurance  Co.  v.  Delpeuch,  82 
Pa.  225. 

Reopening  case. —  Court  may  allow  a  party  to  reopen  his  case  and 
put  in  new  testimony.  Duncan  v.  McCullough,  4  S.  &  R.  480 ;  Mo- 
loney v.  Davis,  48  Pa.  512;  Frederick  v.  Gray,  10  S.  &  R.  182;  Hale 
v.  Fink,  9  Watts,  336;  Barnhart  v.  Pettit,  22  Pa.  135. 

Striking  out  testimony. —  Incompetent  testimony  must  be  stricken 
out  at  or  before  the  close  of  the  testimony,  or  the  error  is  not  cured. 
D.  &  H.  Canal  Co.  v.  Barnes,  31  Pa.  193;  Railroad  Co.  v.  Butler, 
57  Pa.  335;  Yeager  v.  Weaver,  64  Pa.  425. 

An  instruction  in  the  charge  to  the  jury  to  disregard  such  testi- 
mony is  too  late.    R.  R.  &  Coal  Co.  v.  Decker,  82  Pa.  119. 

When  a  witness  is  shown  to  be  incompetent  by  subsequent  evi- 
dence, the  only  remedy  is  an  instruction  to  the  jury  to  disregard 
his  testimony.  Rees  v.  Livingston,  41  Pa.  113;  The  Dictator,  56 
Pa.  290 ;  Simons  v.  Oil  Co.,  61  Pa.  202 ;  Lester  v.  McDowell,  18  Pa. 
91. 

Striking  out  incompetent  answers  to  questions.  Hamilton  v. 
Railroad  Co.,  194  Pa.  1. 

Unresponsive  answers. —  If  an  unresponsive  answer  is  allowed  to 
remain  without  objection,  it  cannot  be  objected  to  on  appeal.  II an- 
num v.  Pownall,   187   Pa.  292. 

Testimony  of  a  witness  unfinished. —  If  witness  dies  before  cross- 
examination  his  testimony  in  chief  is  not  admissible  at  common  law. 
Pringle  v.  Pringle,  59  Pa.   281. 

Evidence  of  a  party  who  dies  before  examination  is  complete  is 
good  so  far  as  it  has  been  given.  Pratt  v.  Patterson  (Sup.  Ct. ),  3 
L.  &  Eq.  Rep.  45. 

Cross-examination  of  a  witness  lost  by  death  of  a  party.  Hay's 
Appeal,  91  Pa.  265. 

Presumption  from  failure  to  call  a  witness.  Com.  v.  Weber,  1G7 
Pa.  153;  Rice  v.  Com.,  102  Pa.  408. 

Offers  of  evidence. —  When  an  offer  of  evidence  as  a  whole  is  made, 
the  court  may  admit  it  in  part  and  reject  the  rest,  though  it  is  no 
error  to  reject  it  all.    Mundis  v.  Emig,  171  Pa.  417. 


596  A  DIGEST  OF  [Pabt  IIL 


Article  127. 

to  what  matters  cross-examination  and  re-examina- 
tion must  be  directed. 

The  examination  and  cross-examination  must  relate  to 
facts  in  issue  or  relevant  or  deemed  to  be  relevant  thereto, 
but  the  cross-examination  need  not  be  confined  to  the  facts 
to  which  the  witness  testified  on  his  examination  in  chief. 

The  re-examination  must  be  directed  to  the  explanation 
of  matters  referred  to  in  cross-examination ;  and  if  new 
matter  is,  by  permission  of  the  Court,  introduced  in  re- 
examination, the  adverse  party  may  further  cross-examine 
upon  that  matter. 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  529 ;  1  Greenleaf  on 
Evidence   (loth  ed.),  sees.  445-447,  467. 

Cross-examination. —  The  cross-examination  in  some  States  must 
be  limited  to  the  matters  covered  by  the  direct  examination.  Hough- 
ton v.  Jones,  1  Wall.  702;  Carey  v.  Hart,  63  Vt.  424;  Sullivan  v. 
Railroad  Co.,  175  Fa.  361;  Rigdon  v.  Conley,  141  111.  565;  Richards 
v.  State,  82  Wis.  172;  Donnelly  v.  State,  26  N.  J.  L.  463,  601;  People 
v.  Tan  Ewan,  111  Cal.  144:  State  v.  Wright,  40  La.  Ann.  589;  Wil- 
liams v.  State,  32  Fla.  315;  Martin  v.  Exp.  Ins.  Co.,  85  la.  643; 
■State  v.  Smith,  49  Conn.  376;  Chapman  v.  Loomis,  36  Conn.  460; 
Burns  v.  Fredericks,  37  Conn.  91 ;  Ashbom  v.  Waterbury,  69  Conn. 
217;  State  v.  Green,  35  Conn.  208.  Contra,  Blackington  v.  Johnson, 
126  Mass.  21  ;  Beal  v.  Nichols,  2  Gray  (Mass.),  262;  Moody  v.  Row- 
ell,  17  Pick.  (Mass.)  490,  498;  Merrill  v.  Berkshire,  11  Pick.  (Mass.) 
269:  Webster  v.  Lee,  5  Mass.  334;  Gerrish  v.  Cummings,  4  Cush. 
(Mass.)   391:  Stiles  v.  Allen.  5  Allen  (Mass.),  320. 

Where  it  is  so  limited  the  court  has  a  discretionary  power  as  to 
how  far  to  permit  cross-examination  to  extend  to  matters  not  strictly 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  597 

germane  to  the  direct  examination,  and  no  error  can  be  predicated 
upon  the  exercise  of  such  discretion.  Steene  v.  Aylesioorth,  18  Conn. 
254 ;  Chapman  v.  Loomis,  36  Conn.  466 ;  State  v.  Bradley,  48  Conn. 
535;  Tompkins  v.  West,  56  Conn.  484;  Dale's  Appeal,  57  Conn.  142; 
State  v.  Duffy,  57  Conn.  528,  529 ;  Tyler  v.  Waddingham,  58  Conn. 
396,  397;  Osborne  v.  Troup,  60  Conn.  498;  State  v.  McCoican,  66 
Conn.  392;  Spiro  v.  Nitkin,  72  Conn.  202. 

Re-examination. —  Oakland  Ice  Co.  v.  Marcy,  74  Me.  294,  301 ; 
V.  S.  v.  18  Barrels,  etc.,  8  Blatchf.  475;  McElheny  v.  Pittsburgh, 
etc.,  R.  Co.,  147  Pa.  1;  Stoner  v.  Devilbiss,  70  Md.  144;  Somerville, 
etc.,  R.  Co.  v.  Dougherty,  22  N.  J.  L.  495;  Plow  Co.  v.  Hawthorn,  71 
Wis.  529;  Farrell  v.  Boston,  161  Mass.  106;  Dote  v.  Wooldredge,  142 
Mass.  161. 

Scope  of  cross-examination. —  The  scope  of  the  cross-examination 
is  largely  in  the  discretion  of  the  court.  It  is  generally  limited 
to  matters  covered  by  the  direct.  Neil  v.  Thorn,  88  N.  Y.  270; 
Hartness  v.  Boyd,  5  Wend.  563;  Kerker  v.  Barter,  1  Hill,  101;  Be- 
dell v.  Poioell,  13  Barb.  183;  Allen  v.  Bodine,  6  Barb.  383;  Fry  v. 
Bennett,  3  Bosw.  200;  il/at/er  v.  People,  80  N.  Y.  364;  People  v.  Oyer 
and  Terminer  Ct.,  83  N.  Y.  436;  Knight  v.  Cunnington,  6  Hun.  ±00; 
Hardy  v.  Norton,  66  Barb.  527.  See  Langley  v.  IFadstoorM,  99  N.  Y. 
61 ;  tfare  v.  Mahoney,  36  N.  Y.  St.  R.  658. 

Must  be  germane. —  Cross-examination  is  to  be  confined  to  matters 
covered  by  the  direct.  Wheeler  &  Wilson  Mfg.  Co.  v.  Barren,  172 
111.  610,  50  N.  E.  325,  affirming  71  111.  App.  222;  East  Dubuque  v. 
Burhyte,  173  111.  553,  50  N.  E.  1077,  affirming  74  111.  App.  99; 
Rigdon  v.  Conley,  141  111.  565;  Stevens  v.  Brown,  12  Brad.  619; 
Hurlbut  v.  Meeker,  104  111.  541;  Entwistle  v.  Mcrklc,  ISO  111.  9. 
54  N.  E.  217;  Stafford  v.  Fargo,  35  111.  481;  Waller  v.  Carter,  8 
Brad.  511;  Adams  Express  Co.  v.  Haggard,  37  111.  405;  P..  P.  J-  ./. 
R.  R.  Co.  v.  Laurie,  63  111.  264;  Lloyd  v.  Thompson,  5  Brad.  90; 
Peru  Coal  Co.  v.  Merrick,  79  111.  112;  Drohn  v.  Brewer,  77  111.  280; 
C  <6  A.  .%.  Co.  v.  Thompson,  19  111.  578;  Hayward  v.  People,  96 
111.  492. 

The  cross-examination  of  a  witness  who  is  an  officer  of  the  cor- 
poration party  cross-examining  must  be  confined  to  matter  covered 
by  his  direct.     East  Dubuque  v.  Burhyte,  74  111.  App.  99. 

A  lengthy  cross-examination  upon  matters  not  covered  by  the 
examination  in  chief  is  ground  for  reversal.  Bell  v.  Preitt,  62  111. 
361. 


598  A  DIGEST  OF  [Pabt  III. 

Need  not  be  germane. —  The  cross-examination  is  not  limited  to 
matters  covered  by  the  direct.  Hemminger  v.  Western  Assur.  Co., 
95  Mich.  355,  54  N.  W.  949;  Ireland  v.  C,  W.  &  M.  Ry.  Co.,  79 
Mich.  163,  44  N.  W.  426;  Hay  v.  Reid,  85  Mich.  296;  Child  v.  De- 
troit Mfg.  Co.,  72  Mich.  623.  Compare  Fox  v.  Barrett's  Estate,  117 
Mich.   162. 

Rebutting  testimony. —  Where  a  railroad  company  was  sued  for 
injuries  caused  by  a  defective  handle-bar  on  a  hand  car  and  intro- 
duced testimony  that  the  car  was  found  to  be  safe,  for  it  was 
examined  every  morning,  it  is  not  error  to  allow  testimony  in  re- 
buttal to  contradict  such  testimony  of  the  railroad.  Greenfield  v. 
Lake  Sh.  &  M.  S.  R.  R.  Co.,  117  Mich.  307. 

New  Jersey. 

Cross-examination. —  The  cross-examination  of  an  accused  must  be 
limited  to  the  matters  brought  out  on  his  examination  in  chief. 
State  v.  Sprague,  64  N.  J.  L.  419;  Donnelly  v.  State,  26  N".  J.  L. 
463,  601. 

A  party  is  not  allowed  to  establish  his  case  substantively  by 
cross-examining  his  opponent's  witnesses.  Donnelly  v.  Slate.  26 
N.  J.  L.  464,  601;  Dennis  v.  Van  Toy,  31  N.  J.  L.  39. 

Re-examination. —  Re-examination  limited  to  explanation  of  mat- 
ters brought  out  on  cross-examination.  State  v.  Gedicke,  43  N.  J.  L. 
86. 

If  a  witness  is  asked  on  cross-examination  whether  or  not  he  had 
a  certain  conversation,  he  may  be  asked  on  re-examination  what 
that  conversation   was.     Railroad  Co.  v.   Doughty,  2   Zab.  495. 

Maryland. 

Cross-examination. —  Cross-examination  is  limited  to  matters 
brought  out  on  examination  in  chief.  Griffith  v.  Diffenderffer,  50 
Md.  466;  Lewis  v.  Clark,  86  Md.  327. 

When  a  witness  has  testified  as  to  a  certain  act,  he  may  be  cross- 
examined  as  to  the  surrounding  circumstances.  Duttera  v.  Baby- 
lon, 83  Md.  536. 

The  defendant  in  a  criminal  case  may  be  cross-examined  on  all 
relevant  matters,  irrespective  of  the  extent  of  the  direct  examina- 
tion.    Guy  v.  State,  90  Md.  29. 

Collateral  matters. —  The  cross-examination  may  extend  to  matters 
collateral   to  the   examination   in   chief   if  thev   are   connected   with 


Chap.  XVI.]  THE  LAW   OF  EVIDENCE.  &yy 

and  relevant  to  the  matter  concerning  which  he  testified.  Black  v. 
Bank,  90  Md.  399. 

Re-examination. —  On  re-examination  the  witness  may  be  reminded 
of  what  he  said  on  cross-examination  in  order  to  explain  it.  Stoncr 
v.  Devilbiss,  70  Md.  144. 

A  witness  may  be  given  the  chance  on  re-examination  to  explain 
ambiguous  answers  given  on  cross-examination.  Schwarize  v.  Yearly, 
31  Md.  270. 

The  court  has  discretion  to  allow  forgotten  or  omitted  questions 
to  be  asked  on  re-examination,  though  usually  the  testimony  is  then 
confined  to  explanation  of  the  cross-examination.  Blake  v.  Stump, 
73  Md.  100. 

Pennsylvania. 

Cross-examination. —  Cross-examination  must  be  confined  to  those 
matters  brought  out  on  the  examination  in  chief.  Floyd  v.  Bovard, 
6  W.  &  S.  75;  Mitchell  v.  Welch,  17  Pa.  339;  Thompson  v.  Ewing,  1 
Brewst.  07 ;  Smith  v.  Philadelphia  Trac.  Co.,  202  Pa.  54 ;  Sutch's  Es- 
tate, 201  Pa.  305;  Bohan  v.  Avoca,  154  Pa.  404;  Sullivan  v.  Railroad 
Co.,  175  Pa.  301;  Denniston  v.  Philadelphia  Co.,  101  Pa.  41. 

One  cannot  establish  his  case  substantively  by  cross-examining 
his  opponent's  witnesses.  Breinig  v.  Meitzler,  23  Pa.  150;  Helser  v. 
McGrath,  52  Pa.  531;  Elhnaker  v.  Buckley,  10  S.  &  R.  72;  Jackson 
v.  hitch,  02  Pa.  451;  Bank  v.  Strohecker,  9  Watts,  237. 

This  rule  applies  even  where  the  witness  under  examination  i^  :i 
party  to  the  suit,  though  such  party  may  be  examined  in  chief  as 
on  cross-examination.  M alone  v.  Dougherty,  7!»  l'a.  -Hi;  Boyd  v. 
Con.  Mills,   149  Pa.  303. 

"It  is  well  settled  in  this  State  that  the  cross-examination  of  a 
witness  should  be  confined  to  matters  in  regard  to  which  he  has  been 
interrogated  in  chief,  or  to  such  questions  as  may  tend  to  show  his 
bias,  interest,  or  relation  to  the  party  calling  him,  or  test  his  knowl- 
edge, integrity,  and  accuracy  of  statement.  A  party  should  not  be 
permitted  to  establish  his  claim  or  to  prove  his  defense  by  a  cross- 
examination  of  the  witnesses  of  his  opponent.  Such  is  not  the  pur- 
pose for  which  a  witness  is  cross-examined.  While  this  is  the  rule, 
yet  the  range  of  a  cross-examination  must,  to  a  very  great  extent. 
be  left  to  the  sound  discretion  of  the  trial  judge."  Glenn  v.  Traction 
€o..  200  Pa.  137. 

One  cannot  cross-examine  a  witness  as  to  collateral  matters  merely 


600  A   DIGEST   OF  [Part  III. 

for  the  purpose  of  discrediting  him  afterward  by  contradicting  him. 
Eildeburn  v.   Curran,  65  Pa.  59. 

Conversation  proved  in  part  on  direct  examination  may  be  brought 
out  entire  on  cross-examination.     Coal  Co.  v.  Schultz,  71  Pa.  180. 

Pule  when  adverse  party  is  called  as  for  cross-examination.  Pep- 
per &  Lewis'  Digest  of  Laws,  "Witnesses,"  sec.  21. 

Discretion  of  the  court. —  Bohan  v.  Avoca,  154  Pa.  404. 

Re-examination. —  McElhcny  v.  Railroad  Co.,  147  Pa.  1.  The  rest 
of  a  conversation  only  partly  brought  out  on  direct  or  cross-exami- 
nation may  be  inquired  of  by  opposite  party.  Walsh  v.  Porterfield, 
87  Pa.  376. 

One  has  the  right  to  re-examine  his  witnesses  in  rebuttal  on  mat- 
ters that  require  explanation.  Acklin  v.  McCalmont  Co.,  201  Pa. 
257. 

A  witness  may  not,  on  re-examination,  testify  as  to  irrelevant 
matter  brought  out  on  cross-examination.  Smith  v.  Dreer,  3  Whart. 
154. 

The  court  may  permit  new  matter  to  be  inquired  into  on  re-exami- 
nation.    Curren  v.  Connery,  5  Binn.  488. 

The  trial  court  has  discretion  to  allow  questions  on  re-examination 
the  purpose  of  which  is  to  secure  a  repetition  of  the  evidence  given 
in  chief.     Stern  v.  Stanton,  184  Pa.  468. 

Court  has  discretion  to  allow  a  variance  from  the  usual  order  of 
giving  evidence.     Young  v.  Edwards,  72  Pa.  257. 


Article  128. 

leading  questions. 

Questions  suggesting  the  answer  which  the  person  put- 
ting the  question  wishes  or  expects  to  receive,  or  suggesting 
disputed  facts  as  to  which  the  witness  is  to  testify,  must 
not,  if  objected  to  by  the  adverse  party,  be  asked  in 
examination  in  chief,  or  in  re-examination,  except  with  the 
permission  of  the  Court,  but  such  questions  may  be  asked 
in  cross-examination. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  601 


AMERICAN   NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed.),  sees.  434,  435, 
445;   1  Wharton  on  Evidence,  sees.  499-504. 

Leading  questions. —  Moody  v.  Itowell,  17  Pick.  (Mass.)  498,  28 
Am.  Dec.  317;  Coogler  v.  Rhodes,  38  Fla.  240;  Harvey  v.  Osborn,  55 
Ind.  535 ;  People  v.  Mather,  4  Wend.  229. 

It  is  discretionary  with  the  court  in  both  civil  and  criminal  cases 
to  allow  leading  questions  on  the  direct-examination.  Northern 
Pac.  R.  Co.  v.  Prim,  158  U.  S.  271;  Badder  v.  Reefer,  91  Mich.  611; 
Ooudy  v.  Werbc,  117  Ind.  154;  Crean  v.  Hourigan,  158  111.  301; 
Green  v.  Gould,  3  Allen  (Mass.),  465;  Com.  v.  Thrasher,  11  Gray 
(Mass.),  57;  Moody  v.  Rowell,  17  Pick.  (Mass.)  490,  498. 

The  judge  may  himself  ask  leading  questions  of  a  witness.  Com. 
v.  Galavan,  9  Allen  (Mass.),  271.  See  Brubaker  v.  Taylor,  76  Pa. 
St.  83;  Chandler  v.  Fleeman,  50  Mo.  239;  Gabbett  v.  /Sfparfcs,  60  Ga. 
582. 

Cross-examination. —  Stratford  v.  Sanford,  9  Conn.  284 ;  Helfrich 
v.  Stein,  17  Pa.  143;   U.  S.  v.  Dickinson,  2  McLean,  325. 

Numerous  items. —  Where  the  examination  relates  to  items  too 
numerous  to  be  thought  of  by  the  witness,  leading  questions  may 
be  employed.  Huckins  v.  People's  Ins.  Co.,  31  N.  H.  238;  Graves  v. 
Merchants'  Ins.  Co.,  82  la.  637. 

Hostile  witness. —  In  case  of  a  hostile  witness,  the  court  may 
allow  leading  questions  on  the  direct-examination.     State  v.  Benncr, 

64  Me.  267 ;  Whitman  v.  Morey,  63  N.  H.  448 ;  McBride  v.  Wallace, 
62  Mich.  451 ;  Bradshaw  v.  Combs,  102  111.  428 ;  St.  Clair  v.  U.  S., 
154  U.  S.  150;  Stratford  v.  Sanford,  9  Conn.  284;  State  v.  Stevens, 

65  Conn.  93. 

A  leading  question,  when  improper,  may  be  replaced  by  a  proper 
question.    Allen  v.  Hartford  Life  Ins.  Co.,  72  Conn.  697. 

Largely  discretionary. —  Leading  questions  are  largely  within  the 
discretion  of  the  court.  Funk  v.  Babbitt,  55  111.  App.  124;  Creanv. 
Hourigan,  158  111.  301:  C.  &  A.  By.  Co.  v.  Eaton,  62  N.  E.  784, 
affirming  9G  111.  App.  570;  Day  v.  Porter,  1G1   111.  235. 

Unless  the  court  has  greatly  abused  its  discretion  with  reference 
to  leading  questions,  a  judgment  will  not  be  reversed.  Gibson  Co. 
v.  Glisosinshi,  76  111.  App.  400. 


602  A   DIGEST   OF  [Part  III. 

As  to  the  effect  of  leading  questions  on  appeal,  see  Crean  v. 
Hourigan,  158  111.  301. 

One  cannot  complain  of  a  leading  question  which  has  not  injured 
him.     Bulson  v.  People,  31  111.  409. 

Objection. —  A  general  objection  to  a  question  does  not  raise  the 
point  that  it  is  leading.     First  Nat.  Bank  v.  Dunbar,  118  111.  625. 

Youthful  witness. —  Leading  questions  may  be  refused  in  the  case 
of  youthful  witnesses.     Coon  v.  People,  99  111.  368. 

Instances. —  A  question  "  Did  you  go  in  voluntarily,  or  did  he  pull 
you  in,"  is  leading.     Kramer  y.  Riss,  77  111.  App.  623. 

A  question,  "  What  was  said,  if  anything,  by  the  plaintiff,  at  the 
time,  about  his  interest?"  is  not  leading.  Swartwout  v.  Evans,  41 
111.  376. 

Leading  questions  defined. — Harvey  v.  Osborn,  55  Ind.  535;  Jack- 
son v.  Todd,  56  Ind.  406;  De  Haven  v.  De  Haven,  77  Ind.  236. 

Leading  questions  are  those  which  either  suggest  the  answer  or 
which  embody  a  material  fact  and  can  be  answered  by  an  affirmative 
or  negative.  Harvey  v.  Osborn,  55  Ind.  535 ;  De  Haven  v.  De  Haven, 
77  Ind.  236. 

Leading  questions  are  proper  as  to  introductory  matters.  Sohn  v. 
Jervis,  101  Ind.  578. 

The  following  question  was  not  excluded  as  suggestive :  "  After  you 
saw  the  elevator  at  the  carriage  works,  what  did  Kaiser  say  about 
it,  if  anything."     Sievers  v.  Peters  Box,  etc.,  Co.,  151  Ind.  642. 

Error. —  In  order  to  be  reversible  error,  a  ruling  as  to  leading 
questions  must  be  injurious.  City  v.  Witman,  122  Ind.  538;  Hun- 
singer  v.  Hofer,  110  Ind.  390;  Snyder  v.  Snyder,  50  Ind.  492. 

New  Jersey. 

Example  of  leading  questions. —  State  v.  Mairs,  Coxe,  453. 

Leading  questions  may  be  permitted  on  the  examination  in  chief, 
largely  within  the  discretion  of  the  court.  Chambers  v.  Hunt,  2 
Zab.  552;  State  v.  Fox,  25  N.  J.  L.  566;  Hershon  v.  Hobensack,  2 
Zab.  372,  3  Zab.  580. 

Maryland. 

Leading  questions. —  A  question  is  leading  when  it  embodies  a  ma- 
terial fact  and  allows  of  the  answer  yes  or  no.  Lee  v.  Tinges,  7  Md. 
216. 

Introductory  leading  questions  merely  directing  the  witness'  atten- 


Chap.  XVI.J  THE  LAW  OF  EVIDENCE.  603 

tion  to  the  subject-matter  of  the  examination  are  not  objectionable 
on  direct  examination.     Bushman  v.   Morling,  30  Md.   3S4. 

The  court  may  in  its  discretion  permit  leading  questions  to  be 
asked.  Frownfelter  v.  State,  00  Md.  80;  8 toner  v.  Devilbiss,  70 
Md.  144. 

Time  for  objecting. —  An  objection  to  a  question  on  the  ground 
that  it  is  leading,  made  after  the  question  is  answered,  comes  too 
late.  Washington  F.  I.  Co.  v.  Davison,  30  Md.  91 ;  Jones  v.  Jones, 
36  Md.  447. 

Objection  on  the  ground  that  a  question  is  leading  must  be  made 
at  the  time  it  is  propounded,  so  that  if  need  be  the  form  can  be 
changed.  Smith  v.  Cooke,  31  Md.  174;  Kerby  v.  Kerby.  57  Md.  345; 
Brown  v.   Hardcastle,   63   Md.   484. 

Pennsylvania. 

Leading  questions. —  A  leading  question  is  one  so  framed  as  to 
indicate  the  answer  desired.  Snyder  v.  Snyder,  6  Binn.  483;  Selin 
v.  Snyder,  7  S.  &  R.  166;  Summers  v.  Wallace,  9  Watts,  161;  Rail- 
road Co.  v.  Quick,  61  Pa.  328. 

The  rule  not  ironclad.     Farmers'  Ins.  Co.  v.  Bair,  87   Pa.   124. 

A  leading  question  must  be  specifically  objected  to  on  that  ground. 
Kemmerer  v.  Edelman,  23  Pa.  143. 

Leading  questions  are  permissible  on  cross-examination,  but  must 
be  confined  to  the  matters  brought  out  on  the  examination  in  chief. 
H  elf  rich  v.  Stein,  17  Pa.   143;   Turner  v.  Reynolds,  23  Pa.   199. 

Hostile  witness. —  The  opposite  party,  if  called  as  a  witness,  may 
be  examined  as  if  on  cross-examination.  M alone  v.  Dougherty,  79 
Pa.  46. 

Where  a  corporation  is  the  defendant,  its  officers  cannot  be  called 
adversely  for  cross-examination ;  but  if  they  come  under  the  class 
of  necessary,  unwilling,  or  adverse  witnesses,  leading  questions  are 
proper.     Gantt  v.  Cox,  199  Pa.  208. 

In  an  action  for  damages  against  a  street  railway  company,  the 
motorman  of  the  car  causing  the  injury  cannot  be  called  by  the 
plaintiff  as  for  cross-examination.  Callary  v.  Transit  Co.,  185  Pa. 
176. 

The  court  has  discretion  to  permit  leading  questions  on  direct 
examination  in  the  interest  of  justice.     Gantt  v.  Cox.  199  Pa.  208. 

Calling  adverse  party  as  for  cross-examination. —  Pepper  &  Lewis' 
Digest  of  Laws,  "Witnesses,"  sec.  21. 


604  A   DIGEST   OF  [Part  III. 

Article  129.* 
questions  lawful  in  cross-examination. 
When  a  witness  is  cross-examined,  he  may,  in  addition 
to  the  questions  hereinbefore  referred  to,  be  asked  any  ques- 
tions which  tend — 

(1)  To  test  his  accuracy,  veracity,  or  credibility;  or 

(2)  To  shake  his  credit,  by  injuring  his  character, 
Provided  that  a  person  charged  with  a  criminal  offence 

and  being  a  witness  under  the  Criminal  Evidence  Act, 
1898,  may  be  cross-examined  to  the  effect,  and  under  the 
circumstances,  described  in  Article  56. 

Witnesses  have  been  compelled  to  answer  such  questions, 
though  the  matter  suggested  was  irrelevant  to  the  matter 
in  issue,  and  though  the  answer  was  disgraceful  to  the 
witness ;  but  it  is  submitted  that  the  Court  has  the  right  to 
exercise  a  discretion  in  such  cases,  and  to  refuse  to  compel 
such  questions  to  be  answered  when  the  truth  of  the  matter 
suggested  would  not  in  the  opinion  of  the  Court  affect  the 
credibility  of  the  witness  as  to  the  matter  to  which  he  is 
required  to  testify. 

In  the  case  provided  for  in  Article  120,  a  witness  cannot 
be  compelled  to  answer  such  a  question. 

Illustration. 

(a)  The  question  was  whether  A  committed  perjury  in  swearimr 
that  he  was  R.  T.  B  deposed  that  he  made  tattoo  marks  on  the  arm 
of  R.  T.,  which  at  the  time  of  the  trial  were  not  and  never  had  been 
on  the  arm  of  A.     B  was  asked  and  was  compelled  to  answer  the 

*  See  Note  XLVI. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  605 

question  whether,  many  years  after  the  alleged  tattooing,  and  many 
years  before  the  occasion  on  which  he  was  examined,  he  committed 
adultery  with  the  wife  of  one  of  his  friends.25 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed. ),  sees.  445,  446, 
451-460;   1  Wharton  on  Evidence,  sees.  527-548. 

A  witness  may  be  compelled  to  answer  questions  tending  to  dis- 
grace him.  The  extent  to  which  they  may  be  asked  is  discretionary 
with  the  court.  vEewncker  v.  Merkey,  102  Pa.  462 ;  Storm  v.  U.  8., 
94  U.  S.  76;  Smith  v.  State,  64  Md.  25;  State  v.  Hack,  118  Mo.  92; 
Eelwig  v.  Lascowski,  82  Mich.  619;  Shelby  v.  Clagett,  46  O.  St.  549; 
South  Bend  v.  Hardy,  98  Ind.  577;  Gutterson  v.  Morse,  58  N.  H.  165. 

To  test  accuracy,  etc. —  Tudor  Iron  Works  v.  Weber,  129  111.  535; 
Wallace  v.  Wallace,  62  la.  651;  McFadden  v.  Santa  Anna,  etc.,  R. 
Co.,  87  Cal.  464 :  Uniacke  v.  Chicago,  etc.,  R.  Co.,  67  Wis.  108 ;  State 
v.  Duffy,  51  Conn.  525. 

Bias,  etc. —  Questions  to  show  bias,  etc.,  are  allowed.  Fitzpatrick 
v.  Riley,  163  Pa.  65;  County  Comrs.  v.  Minderlein,  67  Md.  567; 
Hinchcliffe  v.  Koontz,  121  Ind.  422;  People  v.  Thomson,  92  Cal.  506; 
Wallace  v.  Taunton  St.  R.  R.  Co.,  119  Mass.  91. 

Collateral  matters  to  affect  credibility  are  not  admissible.  This  is 
largely  a  question  of  discretion.  Com.  v.  Schaffner,  146  Mass.  512; 
Sullivan  v.  O'Leary,  146  Mass.  322;  Barkley  v.  Copeland,  86  Cal.  483. 

The  witness  may  be  asked  if  he  has  had  a  lawsuit  with  one  of 
the  parties.    Spiro  v.  Nitkin,  72  Conn.  205. 

Questions  may  be  asked  on  cross-examination  to  show  the  interest 
of  the  witness  in  the  result  of  the  suit.  Dore  v.  Babcock,  72  Conn. 
409. 

Questions  to  test  the  moral  sense  of  the  witness  are  not  allow- 
able.    Com.  v.  Shaw,  4  Cush.   (Mass.)   593. 

A  witness  may  be  asked  if  he  has  been  in  prison.  Com.  v.  Bon- 
ner, 97  Mass.  5S7. 

In  a  suit  by  a  physician  to  recover  for  services  rendered  by  a 
substitute,    the    substitute    having    testified    that    the    charges    are 

25  R.  v.  Orton,  1874.  See  summing-up  of  Cockburn,  C.J.,  vol.  ii. 
p.  719,  &c. 


COG  A  DIGEST  OF  [Part  III. 

reasonable,  may  be  asked  on  cross-examination  what  his  own  fees 
would  have  been.     Sayles  v.  Fitz  Gerald,  72  Conn.  395. 

A  question  intimating  that  another  witness  has  testified  differ- 
ently from  the  one  under  examination  is  not  proper  on  cross-ex- 
amination.    Turner's  Appeal,  72  Conn.   314. 

A  witness  may  be  compelled  to  answer  questions  tending  to  dis- 
grace him.  The  extent  to  which  they  may  be  asked  is  discretionary 
with  the  court.     Shelly  v.  Claggett,  46  Ohio  St.  549. 

Motive  and  interest. — Kent  v.  State,  42  Ohio  St.  426;  Turner  v. 
Slate,  5  Ohio  Circ.  Ct.  537;  Boyle  v.  State,  6  Ohio  Circ.  Ct.  163; 
Valley  Ry.  Co.  v.  Roos,  9  Ohio  Circ.  Ct.   201. 

To  show  interest. —  Questions  tending  to  show  the  interest  of  a 
witness  may  be  asked  on  cross-examination.  T ravers  v.  Snyder,  3$ 
111.  App.  379,  386;  Aneals  v.  People,  134  111.  401,  414. 

Conviction. —  The  fact  that  one  has  been  in  a  reform  school  cannot 
be  brought  out  on  cross-examination  in  order  to  affect  credibility; 
conviction  for  an  infamous  crime  may,  however,  be  shown.  Daxan- 
beklan  v.  People,  93  111.  App.  533. 

To  test  credibility,  etc. — Cross-examination  may  be  directed  to- 
matters  affecting  the  credibility  of  the  witness.  City  v.  Hardy,  98 
Ind.  577. 

On  cross-examination,  the  knowledge,  judgment  or  memory  of  a 
witness  may  be  tested.  Frenzel  v.  Miller,  37  Ind.  1 ;  Oilman  v.  Gardr 
29  Ind.  291. 

A  witness  may  be  compelled  to  answer  questions  tending  to  dis- 
grace him.  The  extent  to  which  they  may  be  asked  is  discretionary 
with  the  court.     Helwig  v.  Lascoicski,  82  Mich.  619. 

New  Jersey. 

Court's  discretion. —  Extent  of  cross-examination  largely  within 
discretion  of  the  trial  court.  Derrickson  v.  Quimby,  43  N.  J.  L. 
376. 

The  manner  of  cross-examining  largely  in  the  discretion  of  the* 
trial  court.  West  v.  State,  2  Zab.  212;  Jones  v.  Insurance  Co.,  3ft 
N.  J.  L.  30. 

Impairing  credibility:  discretion  of  court.  Fries  v.  Brugler,  12 
N.  J.  L.  79. 

Former  conviction. — The  defendant  in  a  criminal  case  may  be  asked 
on  cross-examination  whether  he  has  ever  been  convicted  of  a  crime, 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  607 

for  the  purpose  of  attacking  his  credibility;  also  whether  he  pleaded 
nolo  contendere.    State  v.  Henson,  66  N.  J.  L.  601. 

Interest  and  bias. —  \Yitness  may  be  asked  concerning  a  contract 
whereby  he  is  to  share  in  the  result  of  the  suit.  Railroad  Co.  v. 
Bailey,  37  N.  J.  L.  526. 

Questions  to  bring  out  bias  or  interest  in  the  result  of  the  suit 
are  permissible  on  cross-examination  to  discredit  the  witness.  Haver 
v.  Railroad  Co.,  04  N.  J.  L.  312. 

Statute. —  Interest  may  be  proved  to  affect  credit.  G.  S.  1895, 
"  Evidence,"  3. 

Disgracing  questions. —  Rusling  v.  Bray,  37  N.  J.  Eq.  174. 

A  witness  cannot  be  compelled  to  answer  questions  that  tend  to 
disgrace  him,  though  he  may  waive  his  privilege.  Vaughn  v.  Per- 
rine,  Pen.  728;  State  v.  Fox,  25  N.  J.  L.  566,  599;  State  v.  Bailly, 
Pen.  415;  Fries  v.  Brugler,  7  Hal.  79;  Schenck  v.  Schenck,  Spen. 
208. 

Maryland. 

Authorities. —  Questions  to  explain  or  break  down  the  testimony 
in  chief  are  admissible.     Howard  v.  Oppenheimer,  25  Md.  350. 

The  court  has  discretion  to  refuse  to  allow  cross-examination  on 
matters  too  remote.     Gambrill  v.  Schooley,  95  Md.  260. 

Inadmissible  testimony  cannot  be  brought  in  under  the  guise  of 
cross-examination,  unless  warranted  by  the  examination  in  chief. 
Crawford  v.  Beall,  21  Md.  208. 

Bias. —  Relationship  to  a  .party  to  the  suit,  interest,  or  bias  may 
be  shown.     Blessing  v.  Hope,  8  Md.  31. 

On  a  second  trial  of  a  damage  suit  a  witness  may  be  asked  if  he 
had  not  said  that  he  had  helped  to  get  a  big  verdict  for  the  plain- 
tiff at  the  first  trial.     Wise  v.  Ackerman.  76  Md.  375. 

The  bias  of  a  witness  may  be  shown,  either  against  a  party  to 
the  suit  or  against  one  who  would  be  liable  over  in  case  judgment 
goes  against  such  party.  Commissioners  of  Somerset  v.  Minderlein, 
67  Md.  567. 

Accuracy. —  Questions  tending  to  test  the  correctness  of  an  opinion 
given  in  chief  are  proper.     Keyser  v.  State,  95  Md.  96. 

Questions  may  be  asked  testing  the  witness'  accuracy  of  recollec- 
tion.    Ohlendorff  v.  Kaunne,  66  Md.  495. 

Disgracing  questions. —  A  witness  will  not  be  compelled  to  answer 
questions  tending  to  degrade  or  disgrace  him.  Merluzzi  v.  Gleeaon, 
59  Md.  214. 


608  A  DIGEST  OF  [Pabt  III. 

A  witness  may  be  asked  whether  he  has  ever  been  in  jail  and 
why.  McLaughlin  v.  Mencke,  80  Md.  83;  Smith  v.  State,  64  Md. 
25   (qucere  whether  he  can  be  compelled  to  answer). 

Pennsylvania. 

Illustrative  cases:  Markley  v.  Swartzlander,  8  W.  &  S.  172;  Bank 
V.  Fordyce,  9  Pa.  275;  Jackson  v.  Litch,  62  Pa.  451;  Hughes  v.  (Joul 
Co.,  104  Pa.  207;  Beck  v.  Hood,  185  Pa.  32;  Guckavan  v.  Traction 
Co.,  203  Pa.  521. 

Where  a  witness  testified  that  an  accident  was  caused  by  the  re- 
moval of  sand-boxes  from  the  cars,  it  is  proper  on  cross-examination 
to  ask  him  concerning  substitutes  for  the  sand-boxes  used  by  the 
company.    Smith  v.  Philadelphia  Trac.  Co.,  202  Pa.  54. 

When  a  party  is  sworn  merely  to  introduce  a  book  of  original 
entries,  the  cross-examination  must  be  restricted  to  the  book.  Shaw 
v.  Levy,  17  S.  &  R.  99. 

A  conversation  testified  to  in  chief  may  be  brought  out  entire 
on  cross-examination.  Over  v.  Blackstone,  8  W.  &  S.  71;  Bank  v. 
Donaldson,  6  Pa.  179;  Gordon  v.  Preston,  1  Watts,  385;  Stevenson 
v.  Hoy,  43  Pa.  191;  Jackson  v.  Litch,  62  Pa.  451. 

Cross-examination  may  cover  the  entire  examination  in  chief  and 
things  closely  connected  therewith.  Hoffman  v.  Strohecker,  9  Watts, 
183;  Jackson  v.  Litch,  62  Pa.  451;  Henderson  v.  Hydraulic  Works, 
9  Phila.   100. 

The  judge  has  discretion  to  exclude  unimportant  questions.  Bank 
v.  Roessler,  186  Pa.  431. 

Bias  and  interest. —  Questions  to  show  bias  and  interest  are  per- 
missible on  cross-examination.  Hopkinson  v.  Leeds,  78  Pa.  396 ; 
Ott  v.  Houghton,  30  Pa.  451;  Glenn  v.  Traction  Co.,  206  Pa.  137: 
Fitzpatrick  v.  Riley,   163   Pa.   65. 

Cross-examination  on  collateral  matters  may  be  limited  by  the 
court,  but  questions  directed  to  the  interest  or  bias  of  a  witness 
may  be  asked  of  right.     Beck  v.  Hood,  185  Pa.  32. 

Detectives  may  be  cross-examined  as  to  their  contract  of  employ- 
ment to  show  interest  and  feeling  in  the  cause.  Com.  v.  Farrell, 
187  Pa.  408. 

Credibility  and  accuracy. —  Questions  bearing  on  credibility  are 
admissible  in  the  court's  discretion.  Com.  v.  Eaton,  8  Phila.  428: 
Cameron  v.  Montgomery,  13  S.  &  R.  128;  Batdorff  v.  Brink,  61  Pa. 
179;  McKinney  v.  Reader,  6  Watts,  34;  Krider  v.  Philadelphia,  180 


Chap.  XVI.J  THE  LAW  OF  EVIDENCE.  609 

Pa.  78;  Glenn  v.  Traction  Co.,  206  Pa.  137;  Huoncker  v.  Merkey,  102 
Pa.  462;  Philadelphia  v.  Reeder,  173  Pa.  281;  Dampman  v.  Railroad 
Co.,  166  Pa.  520. 

Cross-examination  as  to  the  details  of  a  map  made  by  the  witness 
to  test  his  accuracy  of  knowledge  and  observation.  Duk  v.  Railway 
Co.,  164  Pa.  243. 

Irrelevant  questions  are  permissible  in  the  discretion  of  the  court 
for  testing  accuracy.     Clark  v.  Church,  5  W.  &  S.  266. 

Questions  to  show  capacity  and  intelligence  of  the  witness  are 
proper.     Yeager  v.  Weaver,  1  Leg.  Gaz.  156. 

A  plaintiff  may  be  asked  on  cross-examination  as  to  his  attempts 
to  corrupt  the  jury  on  a  previous  trial  of  the  case.  Beck  v.  Hood, 
185  Pa.  32. 

Article  129a. 

judge's  discretion  as  to  cross-examination  to  credit. 

The  judge  may  in  all  cases  disallow  any  questions  put  in 
cross-examination  of  any  party  or  other  witness  which  may 
appear  to  him  [i.e.  the  judge]  to  be  vexatious  and  not  rele- 
vant to  any  matter  proper  to  be  inquired  into  in  the  cause 

or  matter.26 

AMERICAN  NOTE. 

See  note  under  Article  129. 

Article  130. 

exclusion  of  evidence  to  contradict  answers  to 
questions  testing  veracity. 

When  a  witness  under  cross-examination  has  been  asked 
and  has  answered  any  question  which  is  relevant  to  the 
inquiry  only  in  so  far  as  it  tends  to  shake  his  credit  by 

20  R.  S.  C,  Order  XXXVI.,  rule  38.  I  leave  Article  129  as  it  orig- 
inally stood;  because  this  Order  is  after  all  only  an  exception  to  the 
rule.  "  Him  "  must  refer  to  the  judge,  as  it  would  otherwise  refer  to 
the  "  party  or  other  witness,"  which  would  be  absurd. 

39 


610  A  DIGEST  OF  [Part  III. 

injuring  his  character,  no  evidence  can  be  given  to  con- 
tradict him  except  in  the  following  cases: — 27 

(1)  If  a  witness  is  asked  whether  he  has  been  previ- 
ously convicted  of  any  felony  or  misdemeanour,  and  denies 
or  does  not  admit  it,  or  refuses  to  answer,  evidence  may  be 
given  of  his  previous  conviction  thereof,28 

(2)  If  a  witness  is  asked  any  question  tending  to  show 
that  he  is  not  impartial,  and  answers  it  by  denying  the  facts 
suggested,  he  may  be  contradicted.29 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Wharton  on  Evidence,  sec.  559 ;  1  Greenleaf  on 
Evidence    (15th  ed.),  sec.  449. 

First  paragraph  of  text.  Coombs  v.  Winchester,  39  N.  H.  13,  75 
Am.  Dec.  203 ;  Davis  v.  Roby,  64  Me.  427 ;  rullen  v.  Pullen,  43  N.  J. 
Eq.  136;  Robbins  v.  Spencer,  121  Ind.  594;  Buckley  v.  Silverbergr 
113  Cal.  673;  Hester  v.  Com.,  85  Pa.  139;  Moore  v.  People,  108  111. 
484;  Sloan  v.  Edwards,  61  Md.  89. 

The  witness  cannot  be  contradicted  as  to  collateral  matters.  State 
v,  Benner,  64  Me.  267;  Alexander  v.  Kaiser,  149  Mass.  321;  McGuire 
v.  McDonald,  99  Mass.  49;  Com.  v.  Lyden,  113  Mass.  452. 

A  witness  cannot  be  cross-examined  as  to  irrelevant  matters  for 
the  mere  purpose  of  contradicting  him.     Tyler  v.  Todd,  36  Conn.  224. 

A  party  who  puts  an  irrelevant  question,  on  cross-examination, 
cannot  afterwards  offer  evidence  to  contradict  the  answer  given. 
Winton  v.  Meeker,  25  Conn.  464. 

Conviction. —  Com.  v.  Bonner,  97  Mass.  587;  Com.  v.  Gorham,  99 
Mass.  420. 

27  A.  G.  v.  Hitchcock,  1847,  1  Ex.  91,  99-105.  See,  too,  Palmer  v. 
Trower,  1852,  8  Ex.  247. 

28  28  &  29  Vict.  c.  18,  s.  6;  re-enacting  17  &  18  Vict.  c.  125,  s.  25, 
now  repealed. 

29  A.  G.  v.  Hitchcock,  1847,  1  Ex.  91,  pp.  100,  105. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  Gil 

The  conviction  may  be  proved  by  the  record  or  by  the  answers  of 
the  witness  on  cross-examination.  State  v.  Elwood,  17  R.  I.  7G3; 
State  v.  McGuire,  15  R.  I.  23 :  State  v.  O'Brien,  81  la.  93 ;  State  v. 
Sauer,  42  Minn.  258;  People  v.  Crowley,  100  Cal.  478;  Burdett  v. 
Com.,  93  Ky.  76;  Simons  v.  People,  150  111.  66  (record,  criminal 
cases). 

Bias. —  In  a  qui  iawi  action  for  taking  usury,  the  party  who  had 
paid  it,  having  testified  to  that  effect,  was  asked  on  cross-examina- 
tion, whether  he  had  not  had  a  controversy  with  the  defendant,  and 
threatened  to  be  revenged  on  him  for  collecting  the  note  alleged  to  be 
usurious.  Held,  that  the  questions  were  admissible,  and  that  his 
answers  in  the  negative  might  be  contradicted  by  other  testimony. 
Atwood  v.  Welton,  7  Conn.  70. 

Collateral  matters. —  A  witness  cannot  be  contradicted  as  to  his 
testimony  on  a  collateral  point,  on  cross-examination.  C,  R.  I.  & 
St.  P.  R.  R.  Co.  v.  Bell,  70  111.  102;  Flansburg  v.  Basin,  3  Brad.  531; 
C,  B.  d  Q.  R.  R.  Co.  v.  Lee,  60  111.  501;  East  Dubuque  v.  Burhyte, 
173  111.  553,  50  N.  E.  1077,  74  111.  App.  99;  Aneals  v.  People,  134  111. 
401,  414. 

One  is  bound  by  the  answers  of  a  witness  on  cross-examination  as 
to  collateral   matters.      Stalcup   v.   State,    146   Ind.   270.    Compare 
State  ex  rel.  v.  Taylor,  4  Ind.  App.  296;  Reynolds  v.  State,  147  Ind. 
3;  Hinkle  v.  State,  151  Ind.  237,  61  N.  E.  196. 

Interest.—  Tolbert  v.  Burke,  89  Mich.  132. 

The  bias  or  interest  of  a  witness  may  be  shown  on  cross-examina- 
tion.    Swift  Electric  Light  Co.  v.  Grant,  90  Mich.  469,  51  N.  W.  539. 

Where  a  witness  testifies  on  cross-examination  that  he  has  not  been 
active  in  procuring  testimony,  the  fact  that  he  has  been  active  may 
be  proved.     Hamilton  v.  People,  29  Mich.  173. 

If  a  witness  answers  questions  concerning  interest,  conviction  or 
relationship  to  the  party,  on  cross-examination,  his  answers  may  be 
contradicted.     Helwig  v.  Lascouxlci,  82  -Mich.  619. 

One  who  has  denied  on  cross-examination  that  he  has  ever  been 
convicted  may  be  impeached  by  proving  the  record,  ndwig  v. 
Laseowski,  82  Mich.  619. 

Cross-examining  counsel  are  bound  by  the  answers  of  witnesses, 
upon  collateral  matters.    Hitchcock  v.  Burgett,  38  Mich.  501. 


612  A  DIGEST  OF  [Part  III. 

New  Jersey. 

Statutory  rule  similar. —  G.  S.    1895,  "Evidence,"  9. 

Authority.—  Pullen  v.  Pullen,  43  N.  J.  Eq.   13G. 

The  State  cannot  contradict  the  answers  of  the  accused  to  irrele- 
vant and  immaterial  questions  asked  him  on  cross-examination. 
Bullock  v.  State,  65  N.  J.  L.  557;  State  v.  Sprague,  64  N.  J.  L.  419. 

When  a  witness  is  asked  on  cross-examination  for  purposes  of 
impeaching  him  whether  he  had  not  been  guilty  of  larceny,  the  an- 
swer cannot  be  contradicted.     Pullen  v.  Pullen,  43  N.  J.  Eq.  136. 

Maryland. 

Authority. —  Sloan  v.  Edwards,  61  Md.  89. 

If  the  prosecuting  witness  in  a  criminal  case  denies  that  he 
offered  money  to  a  witness  for  the  defense  to  induce  him  to  stay 
away,  he  may  be  contradicted.     Richardson  v.  State,  90  Md.  109. 

Pennsylvania. 

Authorities. —  Elliott  v.  Boyles,  31  Pa.  65;  Hester  v.  Com.,  85  Pa. 
139. 

Answers  on  cross-examination  may  be  contradicted  if  they  were 
in  regard  to  matters  brought  out  on  direct  examination.  Blauveli 
v.  Railroad  Co.,  206  Pa.  141. 

One  who  cross-examines  a  witness  as  to  collateral  matters  is 
bound  by  his  answers.  Griffith  v.  Eshehnan,  4  Watts,  51;  Wright  v. 
Cumpsty,  41  Pa.  102. 

If  a  witness  denies  on  cross-examination  that  he  had  previously 
committed  perjury,  his  answer  cannot  be  contradicted.  Elliott  v. 
Boyles,  31  Pa.  65. 

Article  131.* 

statements  inconsistent  with  present  testimony  may 
be  proved. 

Every  witness  under  cross-examination  in  any  proceed- 
ing, civil  or  criminal,  may  be  asked  whether  he  has  made 
any  former  statement  relative  to  the  subject-matter  of  the 
proceeding  and  inconsistent  with  his  present  testimony,  the 

*  See  Note  XLVII. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  613 

circumstances  of  the  supposed  statement  being  referred  to 
sufficiently  to  designate  the  particular  occasion,  and  if  he 
does  not  distinctly  admit  that  he  has  made  such  a  state- 
ment, proof  may  be  given  that  he  did  in  fact  make  it. 

The  same  course  may  be  taken  with  a  witness  upon  his 
examination  in  chief,  if  the  judge  is  of  opinion  that  he 
is  "  adverse  "  [i.e.  hostile]  to  the  party  by  whom  he  wa3 
called  and  permits  the  question. 

It  seems  that  the  discretion  of  the  judge  cannot  be 
reviewed  afterwards.30 

AMERICAN  NOTE. 
General. 

Authorities. —  16  Encyclopaedia  of  Pleading  and  Practice,  p.  279 
et  seq.;  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  462;  Sanderson  v. 
Nashua,  44  N.  H.  492;  Martin  v.  Toiole,  59  N.  H.  31. 

First  paragraph  of  text.  Ayers  v.  Watson,  132  U.  S.  394;  Atchi- 
son, etc.,  R.  Co.  v.  Feehan,  149  111.  202;  Rice  v.  Rice,  104  Mich.  371; 
Welch  v.  Abbott,  72  Wis.  512;  Birch  v.  Hall,  99  Cal.  299;  Brown  T. 
State,  72  Md.  468 ;  State  v.  Jones,  44  La.  Ann.  960 ;  Spohn  v.  Mo.  Pac. 
R.  Co.,  122  Mo.  1 ;  Haley  v.  State,  63  Ala.  83;  Stratford  v.  Fairfield, 
3  Conn.  591 ;  Burns  v.  Fredericks,  37  Conn.  92 ;  Beardsley  v.  Wild- 
man,  41  Conn.  516;  Harrison's  Appeal,  48  Conn.  206. 

If  the  statement  is  of  some  irrelevant  matter,  the  answer  of  the 
witness  is  binding.     Com.  v.  Mooney,  110  Mass.  99,  101. 

Where  a  party  has  offered  an  account-book  in  e.idence,  evidence 
that  upon  the  trial  of  another  case  he  had  testified  that  he  had  no 
such  book    is  admissible.     Sayles  v.  Fitz  Oerald,  72  Conn.  391. 

The  contradictory  statements  may  be  proved  independently,  with- 
out first  asking  the  witness  if  he  made  them.  Ware  v.  Ware,  8 
Greenl.  (Me.)  42,  53;  Wilkin*  v.  Bobbershall,  32  Me.  184;  Cook  v. 
Brown,  34  N.  H.  460;  Robinson  v.  Hutchinson,  31  Vt.  443,  449; 
Holbrook  v.  Holbrook,  30  Vt.  433;  Tucker  v.  Welsh,  17  Mass.  160, 
166,  9  Am.  Dec.  137;  Day  v.  Stickney,  14  Allen   (Mass.),  255,  260; 

30  Rice  v.  Howard,  1886,  16  Q.  B.  D.  681. 


614  A  DIGEST  OF  [Part  III. 

Gould  v.  Norfolk  Lead  Co.,  9  Cush.  (Mass.),  338.  Compare  Cogsivell 
v.  Newbury  port  Sav.  Inst.,  165  Mass.  524;  Com.  v.  Smith,  163  Mass. 
411;  Hedge  v.  Clapp,  22  Conn.  262,  265,  9  Am.  Dee.  137;  Tomlinson 
v.  Derby,  43  Conn.  562;  Butler  v.  Cornwall  Iron  Co.,  22  Conn.  357. 
But  see  Rothroek  v.  Gallaher,  91  Pa.  108. 

Some  courts  hold  that  a  party  cannot  impeach  his  own  witness,  by 
proving  inconsistent  statements.  Cox  v.  Eayres,  55  Vt.  24.  But  see 
Stats,  of  Vermont,  sec.  1247;  Hildreth  v.  Aldrich,  15  R.  I.  163; 
Breiver  v.  Porch,  17  N.  J.  L.  377;  State  v.  Burks,  132  Mo.  363; 
W/ieeter  v.  Thomas,  67  Conn.  577 ;  Dixon  v.  State,  86  Ga.  754 ;  Adam* 
v.  Wheeler,  97  Mass.  67 ;  Stearns  v.  Merchants'  Bank,  53  Pa.  St.  490 ; 
FaZZ  v.  Chicago,  etc.,  R.  Co.,  84  la.  311;  Tarsney  v.  Turney,  48  Fed. 
Rep.  818;  Rindskopf  v.  Kuder,  145  111.  607;  Chester  v.  Wilhelm,  111 
N.  C.  314.  But  see  Brubaker  v.  Taylor,  76  Pa.  St.  83;  C'oa?  v.  Eayres, 
55  Vt.  24,  45  Am.  Rep.  583. 

This  does  not  apply  to  a  witness  whom  one  is  obliged  to  call  (e.  g., 
attesting  witnesses).  Thornton  v.  Thornton,  39  Vt.  122;  Shorey  v. 
Hussey,  32  Me.  579;  Whitman  v.  Morey,  63  N.  H.  448;  State  v. 
S7acfc,  69  Vt.  486;  Hildreth  v.  Aldrich,  15  R.  I.  163.  See  PeopZe  v. 
Cose,  105  Mich.  92.  Nor  to  an  adverse  witness.  Hurlburt  v.  Bellows, 
50  N.  H.  102;  Putnam  v.  U.  S.,  162  U.  S.  697-707;  McNemey  v.  .Read- 
ing, 150  Pa.  St.  611;  White  v.  State,  87  Ala.  24;  Selover  v.  Bryant, 
54  Minn.  434;  Smith  v.  Briscoe,  65  Md.  561;  2Va£.  Syrup  Co.  v. 
Carlson,  42  111.  App.  178. 

Evidence  of  statements  contradictory  to  those  made  on  the  stand 
may  be  introduced.  Ward  v.  Sire,  65  N.  Y.  Supp.  101,  52  App.  Div. 
443;  Grossman  v.  Lurman,  68  N.  Y.  Supp.  311,  57  App.  Div.  393. 

The  evidence  of  the  plaintiff  may  be  impeached  by  her  cross-exam-? 
ination  upon  a  former  trial,  which  is  evidence  for  that  purpose,  al- 
though her  attention  was  not  called  to  it.  Fisher  v.  Monroe,  51 
N.  Y.  St.  R.  585,  reversing  1  Misc.  Rep.  14;  reargument  denied  in 
3  Misc.  Rep.  033.     See  10  Daly,  461. 

The  evidence  stated  in  a  case  made  on  a  former  trial  is  not  ad- 
missible to  impeach  the  testimony  of  a  witness.  Neilson  v.  Colum- 
bian Insurance  Co.,  1  Johns.  301. 

Corroborating  a  witness. —  A  witness  cannot  be  permitted  to  cor- 
roborate the  testimony  of  another  witness,  by  stating  that  she  heard 
the  latter  say,  in  a  prior  conversation,  what  he  had  testified  to  at 
the  trial.     Eggleston  v.  Columbia  Turnpike  Road,  82  N.  Y.  278,  re- 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  615 

versing  18  Hun,  146,  on  a  point  not  considered  below.  And  see  Peo- 
ple v.  Cox,  21  Hun,  47,  83  N.  Y.  610. 

Mode  of  proof. —  Pennsylvania  Co.  v.  Trainer,  5  Circ.  Dec.  519,  12 
Ohio  Circ.  Ct.  66;  Mt.  Adams,  etc.,  Ry.  Co.  v.  Isaacs,  10  Circ.  Dec. 
49,  19  Ohio  Circ.  Ct.  177;  Monroeville  v.  Weihl,  6  Circ.  Dec.  188,  13 
Ohio  Circ.  Ct.  689;  Spaulding  v.  Toledo  Consol.  St.  Ry.  Co.,  10  Circ. 
Dec.  660,  20  Ohio  Circ.  Ct.  99. 

Foundation  for  the  evidence. — A  foundation  must  be  laid  for  im- 
peaching testimony.  Redmon  v.  Holley,  10  Brad.  202.  Compare 
Teal  v.  Heravey,  12  Brad.  32;  Mills  v.  Buflln,  12  Brad.  111. 

Before  statements  out  of  court  can  be  admitted  the  attention  of 
the  witness  must  be  called  to  them.  Seckel  v.  York  Nat.  Bank,  57 
111.  App.  579;  T.  P.  Ace.  Assn.  v.  McKinney,  57  111.  App.  147; 
Regnier  v.  Calot,  2  Gilm.  34;  Ootloff  v.  Henry,  14  111.  384;  G.  & 
C.  U.  R.  R.  Co.  v.  Fay,  16  111.  558;  Root  y.  Wood,  34  111.  283; 
Miner  v.  Phillips,  42  111.  123;  Winslow  v.  Newlan,  45  111.  145;  Craig 
v.  Rorer,  63  111.  325;  N.  W.  Ry.  Co.  v.  Hack,  66  111.  238;  McCoy  v. 
People,  71  111.  Ill;  Bock  v.  Weigant,  5  Brad.  643;  Presley  v.  Powers, 
82  111.  125;  Richardson  v.  Kelly,  85  111.  491. 

Where  a  witness  denies  that  he  has  made  contrary  statements  out 
of  court,  the  fact  of  making  them  may  be  proved.  Chicago  W.  D. 
Ry.  Co.  v.  Ingraham,  131  111.  659,  668;  Consolidated  Coal  Co.  v. 
Seniger,  79  111.  App.  456. 

If  a  witness  neither  admits  or  denies  an  inconsistent  statement, 
such  statement  may  then  be  proved.  Ray  v.  Bell,  24  111.  444;  Wood 
v.  Shaw,  48  111.  273. 

Impeaching  one's  own  witness. —  A  party  cannot  impeach  his  own 
witness,  by  proving  inconsistent  statements.  Rindskopf  v.  Kuder, 
145  111.  607;  Tobin  v.  C.  C.  Ry.  Co.,  17  111.  App.  82,  84;  Mitchell  v. 
Sawyer,  115  111.  650,  653;  Pennsylvania  Co.  v.  Cohen,  66  111.  App. 
318;  United  States  Life  Ins.  Co.  v.  Kielgast,  2G  111.  App.  567. 

A  mere  nominal  party  may  impeach  his  co-party.  Carey  v.  Hen- 
derson, 61  111.  378. 

A  party  may  contradict  his  own  witness  by  other  witnesses.  Wal- 
ler v.  Carter,  8  Brad.  511;  Rockwood  v.  Poundstone,  38  111.  199. 

As  to  an  adverse  witness,  see  National  Syrup  Co.  v.  Carlson,  42 
111.  App.  178. 

Sustaining  witness. —  The  testimony  of  a  witness  cannot  be  cor- 
roborated by  proof  of  declarations  made  out  of  court.  Stolp  v. 
Blair,  68  111.  541. 


616  A  DIGEST  OF  [Part  III. 

A  witness's  declarations  may  be  given  to  corroborate  his  testimony 
when  his  credibility  is  attacked.     Gates  v.  People,  14  111.  434. 

Mode  of  proving  statements. —  A  report  of  a  stenographer  cannot 
be  used  to  impeach  a  witness  at  a  subsequent  trial.  Stayner  v. 
Joyce,  120  Ind.  99. 

The  testimony  as  set  out  in  a  bill  of  exceptions  cannot  be  used  to 
establish  contrary  statements.  Pennsylvania  Co.  v.  Marion,  123 
Ind.  415  j  Glenn  v.  State,  46  Ind.  368;  Starrett  v.  Burkhalter,  86 
Ind.  439;  Stayner  v.  Joyce,  120  Ind.  99;  Terry  v.  Shivley,  93  Ind.  143. 
Contrary  statements  given  in  a  deposition  in  another  case  may  be 
proved.     McAfee  v.  Montgomery,  21  Ind.  App.  196. 

Testimony  in  writing  before  a  coroner  cannot  be  contradicted  by 
parol  evidence.    Robinson  v.  State,  87  Ind.  292. 

Testimony  before  a  coroner,  reduced  to  writing,  may  be  used  to 
contradict  a  witness.     Woods  v.  State,  63  Ind.  353. 

Explaining  statements. —  Where  it  is  sought  to  impeach  a  witness 
by  proof  of  contrary  statements,  the  witness  may  be  called  to  give 
his  account.     Railway  Co.  v.  Harris,  49  Ind.  119. 

As  to  immaterial  matters. —  A  witness  cannot  be  impeached  by 
proving  contradictory  statements  with  reference  to  immaterial  or 
collateral  matters.  Driscoll  v.  People,  47  Mich.  413;  Dalman  v. 
Koning,  54  Mich.  320;  Dunn  v.  Dunn,  11  Mich.  284;  Fisher  v.  Hood, 
14  Mich.  189;  Hamilton  v.  People,  46  Mich.  186;  Leavitt  v.  Stansell, 
44  Mich.  424. 

Immaterial  matters  cannot  be  brought  into  the  case  for  the  pur- 
pose of  impeachment.     McDonald  v.  McDonald,  67  Mich.  122. 

A  witness  cannot  be  asked  as  to  irrelevant  matters  on  cross-ex- 
amination, for  the  purpose  of  contradicting  him.  People  v.  Hill- 
house,  80  Mich.  580. 

New  Jersey. 
Previous  inconsistent  statments  may  be  proved.     Crane  v.  Sayret 
1  Hal.   Ill;   Brewer  v.  Porch,  2  Harr.  379;   Schenck  v.   Griffen,  38 
N.  J.  L.  462,  472. 

Statements  of  an  alleged  paramour  are  not  admissible  against 
the  defendant,  but  are  admissible  to  contradict  his  testimony  at 
the  trial.     Graham  v.  Graham,  50  N.  J.  Eq.  701. 

Cross-examination  allowed  as  to  testimony  given  on  a  former 
trial  of  the  case.     Miller  v.  Rambo,  66  N.  J.  L.  191. 

Laying  foundation. —  Whore  a  witness  is  also  a  party  to  the  suit, 
no  foundation  need  be  laid  before  introducing  evidence  of  inconsist- 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  617 

ent  statements.  They  are  affirmative  evidence  as  admissions,  not 
merely  impeaching  evidence.     AlcBlain  v.  Edgar,  65  N.  J.  L.  634. 

Inconsistent  statements  provable  after  laying  the  foundation  on 
cross-examination.     Fries  v.  Brugler,  7  Hal.  70. 

Impeaching  one's  own  witness. —  A  party  cannot  prove  inconsistent 
statements  to  impeach  his  own  witness.  Brewer  v.  Porch,  17 
N.  J.  L.  377. 

The  State  may  contradict  statements  made  by  a  defendant  in  a 
confession.     State  v.  Abbatto,  64  N.  J.  L.  658. 

Though  a  party  may  not  impeach  the  character  of  his  own  witness 
for  truth  and  veracity,  yet  when  she  denies  that  a  certain  signature 
is  hers  he  may  contradict  her  as  to  that  particular  fact.  Ingersoll 
v.  English,  66  N.  J.  L.  466. 

Maryland. 

Statute. —  Inconsistent  statements  of  the  adverse  party  may  be 
proved.     P.  G.  L.  1888,  art.  35,  sec.  4. 

Prior  contradictory  statements  may  be  proved.  Balto.,  etc.,  Ry. 
Co.  v.  Knee,  83  Md.  77;   Oarlitz  v.  State,  71   Md.  293. 

When  a  witness  has  said  he  did  not  have  a  certain  conversation 
with  another,  it  may  be  shown  that  he  did  have.  Turnbull  v.  Mad- 
dox,  68  Md.  579;   Railroad  Co.  v.  Andrews,  39  Md.  329. 

As  to  a  matter  of  fact  it  cannot  be  shown  that  the  witness  has 
expressed  a  contrary  opinion.    Sloan  v.  Edwards,  Gl  Md.  89. 

Inconsistent  statements  are  to  be  used  only  as  discrediting  a  wit- 
ness, not  as  primary  evidence  of  the  facts  stated.  Stirling  v.  Stir- 
ling, 64  Md.  138. 

Interest  and  crime. —  A  witness  may  be  shown  to  have  an  interest 
or  to  have  been  convicted  of  crime.     P.  G.  L.  1888,  art.  35,  sec.  5. 

Foundation  must  be  laid. —  Paterson  v.  State,  83  Md.  194;  Brown 
v.  State,  72  Md.  468;  Kriete  v.  Myer,  61  Md.  558;  Ins.  Co.  v.  Traub, 
83  Md.  524. 

The  foundation  required  consists  in  giving  the  witness  a  fair 
chance  to  recollect  by  referring  him  to  the  dates,  names,  and  the 
surrounding  circumstances  of  his  supposed  former  contradictory 
statement.  Whiteford  v.  Burckmyer,  1  Gill,  127;  Smith  v.  Cooke, 
31  Md.  174;  Higgins  v.  Carlton.  28  Md.  115:  Matthews  v.  Dare,  20 
Md.  2.48;  Waters  v.  Waters,  11  G.  &  J.  37;  Bank  v.  Wavig.  Co.,  11 
G.  &  J.  28. 


618  A  DIGEST  OF  [Pabt  III. 

The  previous  admissions  of  a  party  to  the  suit  are  admissible 
against  him  without  first  questioning  him  concerning  them.  Kirk 
v.  Garrett,  84  Md.  383. 

Irrelevant  matters. —  A  witness  may  not  be  cross-examined  as  to 
irrelevant  matters  merely  for  the  purpose  of  contradicting  him  later. 
Sloan  v.  Edwards,  61  Md.  89;  Kriete  v.  Myer,  61  Md.  558;  White- 
ford  v.  Burckmeyer,  1  Gill,  127.  See  Mason  v.  Poulson,  43  Md.  161 ; 
Goodhand  v.  Benton,  6  G.  &  J.  481. 

If  irrelevant  cross-examination  has  been  allowed,  that  does  not 
authorize  evidence  to  contradict  the  witness  as  to  such  irrelevant 
matters.     Pass.  Ry.  Co.  v.  Tanner,  90  Mel.  315. 

Contradicting  one's  own  witness. —  When  a  witness  has  made  a 
statement  to  a  party  or  his  attorney  wholly  contradictory  to  his 
sworn  testimony,  he  may  be  asked  concerning  such  former  state- 
ment, and  if  he  denies  making  it.  it  may  be  proved.  The  statement 
must  have  been  made  with  reference  to  the  case  in  question,  and 
he  must  have  been  called  on  the  faith  of  such  statement.  Smith  v. 
Briscoe,  65  Md.  561. 

One  cannot  impeach  his  own  witness  by  introducing  a  previous 
letter  written  by  such  witness.     Sewell  v.  Gardner,  48  Md.  178. 

A  party  may  prove  the  facts  as  they  are,  though  one  of  his  wit- 
nesses has  stated  them  otherwise  and  he  cannot  impeach  the  wit- 
ness directly.  Sewell  v.  Gardner,  48  Md.  178 ;  Wolfe  v.  Hunter,  1 
Gill,  84. 

A  party  may  call  a  witness  to  testify  in  direct  contradiction  of 
a  former  witness  called  by  him.  Bank  v.  Steam  Nav.  Co.,  11  G.  &  J. 
28. 

Pennsylvania. 

Authorities. —  A  witness  may  be  discredited  by  showing  that  he 
testified  differently  at  a  former  trial  (Travis  v.  Brown,  43  Pa.  9)  ; 
or  by  reading  a  former  deposition  in  the  same  case  (Bull  v.  Toicson, 
4  W.  &  S.  557;  Parker  v.  Donaldson,  6  W.  &  S.  132)  ;  or  by  proving 
other  previous  inconsistent  statements  (Craig  v.  Craig,  5  Rawle, 
91;  Wertz  v.  May,  21  Pa.  274;  Schlater  v.  Winpenny,  75  Pa.  321). 

If  the  accused  on  trial  for  murder  deny  on  cross-examination 
that  he  made  threats,  he  may  be  contradicted.  Gaines  v.  Com.,  50 
Pa.   319. 

If  a  witness  says  he  does  not  remember  having  made  a  certain 
statement,  it  may  be  shown  that  he  did  make  it.  Gregg  Twp.  v. 
Jamison,  55  Pa.  468. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  619 

Manner  of  questioning  the  impeaching  witness.  Insurance  Co.  v. 
Bair,  87  Pa.  124. 

Party's  own  witness. —  Inconsistent  statements  are  not  admissible 
to  impeach  one's  own  witness.  Steams  v.  Bank,  53  Pa.  4!)U.  But 
a  party  may  prove  the  facts  as  they  are  by  other  witnesses.  Rail- 
road Co.  v.  Fortney,  90  Pa.  323. 

Hostile  witnesses. —  An  unwilling  or  hostile  witness  may  be  asked 
by  the  party  calling  him  whether  he  has  not  testified  otherwise  on 
a  former  occasion.     Bank  v.  Davis,  0  W.  &  S.  285. 

The  evidence  of  one's  own  witness  may  be  contradicted,  if  he 
comes  under  the  class  of  necessary,  unwilling,  or  adverse  witnesses. 
Gantt  v.  Cox,  199  Pa.  208. 

The  foundation  necessary  to  show  that  one's  own  witness  is  hos- 
tile.    Fisher  v.  Hart,  149  Pa.  232. 

Rule  when  adverse  party  is  called  as  for  cross-examination.  Pep- 
per &  Lewis'  Digest  of  Laws,  "  Witnesses,"  sec.  21. 

Surprise. —  A  party  surprised  by  the  testimony  of  his  witness  may 
call  to  his  recollection  conversations  wherein  he  made  contrary 
statements  and  thus  give  him  a  chance  to  explain.  McXcrney  v. 
Reading,  150  Pa.  611. 

Laying  foundation. —  Previous  inconsistent  statements  cannot  be 
proved,  unless  the  witness  be  first  asked  concerning  them  and  given 
a  chance  to  explain  them,  thus  laying  the  foundation  for  contra- 
diction. McAteer  v.  MeMullen,  2  Pa.  32;  Wright,  v.  Cumpsty,  41 
Pa.  102;  Coates  v.  Chapman,  195  Pa.  109.  But  the  trial  court 
has  discretion  to  allow  proof  of  such  inconsistent  statements  with- 
out laying  a  foundation.  Sharp  v.  Emmet,  5  Whart.  283  ;  Kay  v. 
Fredrigal,  3  Pa.  221;  Walden  v.  Finch,  70  Pa.  460;  Cronkritc  v. 
Trexler,   187  Pa.   100;    Rothrock  v.   Gallagher,  91   Pa.   108. 

The  court  may  allow  the  witness  to  be  recalled  to  explain  the 
inconsistency  when  no  foundation  was  laid  on  cross-examination. 
Rothrock  v.  Gallagher,  91  Pa.  108. 

When  one's  opponent  is  called  as  a  witness,  his  testimony  may  be 
contradicted  by  proving  inconsistent  statements  without  giving 
him  any  chance  to  explain,  for  they  would  be  admissible  as  admis- 
sions in  any  event.  Brubaker  v.  Taylor,  76  Pa.  83;  Kreiter  v.  Bam- 
berger, 82  Pa.   59. 

Testimony  in  a  former  proceeding. —  Pepper  &  Lewis'  Digest  of 
Laws,  "  Criminal  Procedure,"  sec.  84 ;   "  Witnesses,"  sec.  20. 


620  A  DIGEST  OF  [Part  III. 


Article  132. 
cross-examination  as  to  previous  statements  in 

WRITING. 

A  witness  under  cross-examination  [or  a  witness  whom 
the  judge  under  the  provisions  of  Article  131  has  permitted 
to  be  examined  by  the  party  who  called  him  as  to  previous 
statements  inconsistent  with  his  present  testimony]  may  be 
questioned  as  to  previous  statements  made  by  him  in 
writing,  or  reduced  into  writing,  relative  to  the  subject- 
matter  of  the  indictment  or  proceeding,  without  such  writ- 
ing being  shown  to  him  [or  being  proved  in  the  first  in- 
stance] ;  but  if  it  is  intended  to  contradict  him  by  the 
writing,  his  attention  must,  before  such  contradictory  proof 
can  be  given,  be  called  to  those  parts  of  the  writing  which 
are  to  be  used  for  the  purpose  of  contradicting  him.  The 
judge  may,  at  any  time  during  the  trial,  require  the  docu- 
ment to  be  produced  for  his  inspection,  and  may  thereupon 
make  such  use  of  it  for  the  purposes  of  the  trial  as  he  thinks 

fit.81 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sees.  463-465 v 
1  Wharton  on  Evidence,  sec.  68 ;  10  Encyclopaedia  of  Pleading  and 
Practice,  p.  291,  et  seq.     See  Whitman  v.  Morey,  63  N.  H.  448. 

Modifying  rule  of  text.  Hosmer  v.  Groat,  143  Mass.  16;  Chicago 
R.  Co.  v.  McLoughlin,  146  111.  353;  Lightfoot  v.  People,  16  Mich.  507; 
State  v.  Stein,  79  Mo.  330;   Glenn  v.   Gleason,  61  la.  28;  Floyd  v. 

31  28  Vict.  c.  18,  s.  5,  re-enacting  17  &  18  Vict.  c.  125,  s.  24,  now- 
repealed.  I  think  the  words  between  brackets  represent  the  meaning 
of  the  sections,  but  in  terms  they  apply  only  to  witnesses  under 
cross-examination  — "  Witness   mav   be   cross-examined,"   &c. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  621 

State,  82  Ala.  16;  State  v.  Cellegari,  41  La.  Ann.  578;  Chicago,  etc., 
R.  Co.  v.  Artery,  137  U.  S.  507;  Morford  v.  Peck,  46  Conn.  380. 

In  an  action  for  wrongful  discharge  from  employment,  where  the 
defendant  testified  to  the  terms  of  the  contract  it  wat  proper,  on 
cross-examination,  to  call  his  attention  to  allegations  in  his  verified 
answer  in  conflict  therewith ;  and  this  though  the  answer  was  verified 
by  advice  of  counsel.     Hare  v.  Mahony,  36  N.  Y.  St.  R.  653. 

Contradictory  statement  in  writing. —  The  fact  that  a  witness  has 
made  written  statements  inconsistent  with  his  evidence  may  be 
proved.  Boeker  v.  Hess,  34  111.  App.  332,  336;  N.  L.  Packet  Co.  v. 
Bininger,  70  111.  571. 

The  contradictory  statement  in  writing  (e.  g.,  a  letter),  cannot  be 
introduced  without  asking  the  witness  if  he  wrote  it.  Transportation 
Co.  v.  O'Neill,  41  111.  App.  425;  Seckel  v.  York  Nat.  Bank,  57  111. 
App.  579. 

A  letter  is  admissible  to  impeach  a  witness.  Dick  v.  Marble,  155 
111.  137. 

A  witness  may  be  impeached  by  proof  of  an  affidavit  containing 
contradictory  statements.  Von  Olahn  v.  Von  Glahn,  46  111.  134; 
Stone  v.  Cook,  79  111.  424. 

A.  witness  may  be  impeached  by  the  testimony  in  a  deposition. 
Bartalott  v.  International  Bank,  119  111.  268. 

When  a  witness  has  admitted  that  he  made  written  statements 
contradictory  to  his  evidence,  such  statements  are  not  admissible. 
Swift  v.  Madden,  165  111.  41. 

A  witness  may  be  asked  as  to  former  testimony  in  another  case  for 
the  purpose  of  refreshing  his  recollection.  Battishill  v.  Humphreys, 
64  Mich.  494. 

As  to  prior  inconsistent  statements  in  writing,  see  Monyhan  v. 
Detroit  &  S.  Plank  Road  Co.,  8  Det.  L.  N.  1104,  89  N.  W.  372. 

New  Jersey. 

A  document  offered  to  contradict  testimony  in  regard  to  it  must 
be  identified  as  the  one  referred  to  by  the  witness.  West  v.  State. 
2  Zab.  212. 

Maryland. 

As  to  the  use  of  a  witness'  letters  for  contradicting  his  testi- 
mony, see  de  Sobry  v.  de  Laistre,  2  H.  &  J.  191. 

Pennsylvania. 

Letters. —  Morgan  v.  Browne,  71  Pa.   130. 


622  A  DIGEST  OF  [Part  III. 

Article  133. 

impeaching  credit  of  witness. 

The  credit  of  any  witness  may  be  impeached  by  the 
adverse  party,  by  the  evidence  of  persons  who  swear  that 
they,  from  their  knowledge  of  the  witness,  believe  him  to  be 
unworthy  of  credit  upon  his  oath.  Such  persons  may  not 
upon  their  examination  in  chief,  give  reasons  for  their  be- 
lief, but  they  may  be  asked  their  reasons  in  cross-examina- 
tion, and  their  answers  cannot  be  contradicted.32 

No  such  evidence  may  be  given  by  the  party  by  whom 
any  witness  is  called,33  but,  when  such  evidence  is  given  by 
the  adverse  party,  the  party  who  called  the  witness  may 
give  evidence  in  reply  to  show  that  the  witness  is  worthy 
of  credit.34 

AMERICAN  NOTE. 
General. 

Authorities. —  10  Encyclopaedia  of  Pleading  and  Practice,  p.  299 
et  seq.;  1  Wharton  on  Evidence,  sees.  397,. 567,  56S;  1  Greenleaf  on 
Evidence  (15th  ed.),  sec.  461. 

One  who  knows  nothing  of  the  character  of  a  witness,  except  what 
he  heard  on  two  occasions,  cannot  testify  as  an  impeaching  witness. 
Com.  v.  Rogers,  136  Mass.  158.  As  to  qualification,  generally,  see 
Bates  v.  Barber,  4  Cush.  (Mass.)  107;  Wetherbee  v.  JV orris,  103  Mass. 
565;  Rundell  v.  La  Fleur,  6  Allen   (Mass.),  480. 

An  impeaching  witness  may  be  cross-examined  as  to  the  source  of 
his  information.  State  v.  Howard,  9  N.  H.  485;  Hepworth  v.  Ilcn- 
shall,  153  Pa.  St.  592;  Bobbins  v.  Spencer,  121  Ind.  594.  See  Holly- 
wood v.  Reed,  57  Mich.  234;  Bates  v.  Barber,  4  Cush.  (Mass.)   107. 

32  2  Ph.  Ev.  503-4 ;  Taylor,  1470,  1470a.  See  R.  v.  Brown,  1867, 
1  C.  C.  R.  70. 

33  28  Vict.  c.  18,  s.  3. 

34  2  Ph.  Ev.  504. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  623 

An  impeaching  witness  may  not  be  asked  reasons  on  the  direct,  but 
may  on  the  cross-examination.  Weeks  v.  Hull,  19  Conn.  376,  379, 
50  Am.  Dec.  249. 

An  impeaching  witness  may  be  asked  on  cross-examination  how  he 
has  received  his  information  as  to  the  general  character  of  the  wit- 
ness impeached,  and  what  persons  he  has  heard  speak  against  it. 
Weeks  v.  Hull,  19  Conn.  379. 

It  is  well  settled  that  a  new  trial  should  not  be  granted  for  newly- 
discovered  evidence  that  would  impeach  the  general  reputation  of  a 
witness  for  truth  and  veracity.  Evidence  that  a  witness  since  the 
trial  had  told  a  different  story  from  that  which  was  told  in  court, 
is  essentially  of  an  impeaching  character.  Husted  v.  Mead,  58  Conn. 
61,  62. 

The  character  of  a  witness  for  truth  is  the  only  thing  that  can  be 
attacked,  in  an  attempt  to  impeach  him.  State  v.  Randolph,  24 
Conn.  366. 

The  court  may  limit,  at  its  discretion,  the  number  of  impeaching 
witnesses;  though,  should  the  limit  be  fixed  manifestly  too  low,  it 
might  be  ground  for  a  new  trial.  Six  on  a  side  will  ordinarily  be 
sufficient.  Bunnell  v.  Butler,  23  Conn.  69;  Hollywood  r.  Reed,  57 
Mich.  234. 

Impeaching  and  contradicting  party's  own  witness. —  One  may  con- 
tradict his  own  witness.  Seavy  v.  Dearborn,  19  N.  H.  351 ;  Swamscot 
Mach.  Co.  v.  Walker,  22  N.  H.  457;  Wheeler  v.  Thomas,  67  Conn. 
577 ;  Olmstead  v.  Winsted  Bank,  32  Conn.  278,  85  Am.  Dec.  260. 

While  a  party  may  disprove  a  fact  testified  to  by  his  witness,  he 
cannot  impeach  him  under  the  rule  of  this  article.  Hill  v.  West  End 
St.  R.  R.  Co.,  158  Mass.  458;  Brolley  v.  Lapham,  13  Gray  (Mass.), 
294;  Com.  v.  Welsh,  4  Gray  (Mass.),  535;  Com.  v.  Starkiccather,  10 
Cush.  (Mass.)  59:  Whitaker  v.  Salisbury,  15  Pick.  (Mass.)  534; 
Whitney  v.  Eastern  R.  R.  Co.,  9  Allen  (Mass.),  364;  Broicn  v.  Bel- 
lows, 4  Pick.    (Mass.)    179;   Wheeler  v.  Thomas,  67  Conn.  577. 

This  rule  applies  also  to  a  witness  which  he  is  obliged  to  call,  as 
an  attesting  witness.  Brown  v.  Bellows,  4  Pick.  (Mass.)  179,  194; 
Whitaker  v.  Salisbury,  15  Pick.    (Mass.)    534. 

Supporting  witness. —  The  party  whose  witness  is  attacked  may 
give  evidence  in  support  of  his  reputation.  Com.  v.  Ingraham,  7 
Gray  (Mass.),  46,  48;  First  Nat.  Bank  v.  Wolff,  79  Cal.  69;  Magee  v. 
People,  139  111.  138;  Sloan  v.  Edwards,  61  Md.  89. 


624  A  DIGEST  OF  [Paet  III. 

As  a  general  rule,  a  witness  cannot  be  supported  by  evidence  of 
his  general  character  for  truth,  excepting  after  a  general  impeach- 
ment of  it.  Merriam  v.  H.  &  N.  H.  R.  R.  Co.,  20  Conn.  364;  Rogers 
v.  Moore,  10  Conn.  16,  17. 

Reputation  only  provable. —  General  reputation  as  to  truthfulness 
may  be  shown.  State  v.  Howard,  9  N.  H.  485 ;  Titus  v.  Ash,  24  N.  H. 
319;  Bd.  of  Commerce  v.  O'Connor,  137  Ind.  622;  Isler  v.  Dewey,  71 
N.  C.  14 ;  Walker  v.  Phenix  Ins.  Co.,  62  Mo.  App.  209 ;  Hodgkins  v. 
State,  89  Ga.  761,  765.  Contra,  Webb  v.  State,  29  O.  St.  351;  Wertz 
v.  May,  21  Pa.  St.  274;  State  v.  Archer,  73  la.  320;  People  v.  Olm- 
stead,  30  Mich.  431. 

Reputation  eighteen  months  before  may  be  shown.  Com.  v.  Bil- 
lings, 97  Mass.  405. 

Particular  falsehoods. —  Particular  instances  of  falsehood  cannot 
be  shown.  Com.  v.  Rogers,  136  Mass.  158,  159;  Quinsigamond  Bank 
v.  Hobbs,  11  Gray  (Mass.),  250;  Com.  v.  Lawler,  12  Allen  (Mass.), 
585;  Com.  v.  Kennon,  130  Mass.  39;  Drew  v.  State,  124  Ind.  9;  State 
v.  Rogers,  108  Mo.  202;  People  v.  Ryan,  108  Cal.  581;  Robbins  v. 
Spencer,  121  Ind.  594;  Laclede  Bank  v.  Keeler,  109  111.  385;  State  v. 
Spurling,  118  N.  C.  1250. 

Sustaining  witnesses. —  See  10  Encyclopaedia  of  Pleading  and 
Practice,  324  et  seq.,  where  there  is  a  full  citation  of  authorities. 

The  jury  is  at  liberty  to  disbelieve  the  evidence  of  a  party  defend- 
ant or  of  his  managing  agent,  although  uncontradicted  and  although 
the  witness  is  not  impeached.  Brumfield  v.  Hill,  28  N.  Y.  St.  R.  362, 
8  N.  Y.  Supp.  143. 

The  impeaching  witness  should  first  be  inquired  of  as  to  his  knowl- 
edge.   Carlson  v.  Wintersen,  147  N.  Y.  652. 

Having  testified  that  the  witness  is  of  bad  reputation  as  to  truth- 
fulness, the  impeaching  witness  may  be  asked  if  he  would  believe  him 
under  oath.  People  v.  Mather,  4  Wend.  229 ;  People  v.  Rector,  19 
Wend.  569;  People  v.  Davis,  21  Wend.  309;  Adams  v.  Greenwich  Ins. 
Co.,  70  N.  Y.  166. 

The  impeaching  witness  may  be  cross-examined  as  to  the  sources 
of  his  information.  Fulton  Bank  v.  Benedict,  1  Hall,  480;  People  v. 
Mather,  4  Wend.  232 ;  Tower  v.  Winters,  7  Cow.  263. 

Form  of  question. — A*  to  the  proper  form  of  question  for  impeach- 
ing a  witness,  see  Schattgen  v.  Holmback,  52  111.  App.  54. 

A  proper  form  of  question  is  as  to  "  whether  he  is  acquainted  with 
the  general  reputation  of  the  party  sought  to  be  impeached  among 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  625 

his  neighbors  and  associates  for  truth  and  veracity."  Crabtree  v. 
Hagenbaugh,  25  111.  233;  Foulk  v.  Eckert,  61  111.  318;  Dimmick  v. 
Downs,  82  111.  570. 

Limiting  number  of  witnesses. —  A  general  rule  limiting  the  num- 
ber of  impeaching  witnesses  is  unreasonable.  Lamed  v.  Piatt,  26 
111.  App.  278. 

Attacking  impeaching  witness. —  The  character  of  an  impeaching 
witness  cannot  generally  be  attacked.  Rector  v.  Rector,  3  Gilm.  105; 
Dimmick  v.  Downs,  82  111.  570. 

Objections  to  testimony. —  Objections  to  impeaching  testimony  must 
be  specific.     Smith  v.  M'Cartney,  33  111.  App.   178. 

Reputation  only  provable. —  General  reputation  as  to  truthfulness 
may  be  shown.     Board  of  Commerce  v.  O'Connor,  137  Ind.  622. 

Particular  falsehoods. —  Particular  instances  of  falsehood  cannot 
be  shown.  Drew  v.  State,  124  Ind.  9;  Robbins  v.  Spencer,  121  Ind. 
594. 

Cross-examination  of  impeaching  witnesses. — As  to  cross-examina- 
tion of  impeaching  witness,  see  Oliver  v.  Pate,  43  Ind.  132;  Hutts  v. 
Hutts,  62  Ind.  240. 

An  impeaching  witness  may  be  cross-examined  as  to  the  source  of 
his  information.     Robbins  v.  Spencer,  121  Ind.  594. 

New  Jersey. 

Reputation  for  truth. —  Evidence  of  a  witness'  reputation  for 
truthfulness  may  be  given  as  it  exists  at  the  time  such  witness 
testifies,  though  the  witness  is  also  the  defendant  in  a  criminal 
prosecution.     State  v.  Sprague,  64  N.  J.  L.  419. 

An  impeaching  witness  who  went  to  the  neighborhood  for  the  pur- 
pose of  learning  another's  reputation  is  incompetent.  Raid  v.  Reid, 
17  N.  J.  Eq.   101. 

Proof  of  specific  instances  not  permissible.  Atwood  v.  Intpson,  20 
N.  J.  Eq.   151. 

General  reputation  in  the  neighborhood  for  truth  and  veracity  is 
admissible;  but  without  giving  such  reputation  a  witness  may  not 

40 


626  A  DIGEST  OF  [Past  III. 

say  he  would  not  believe  the  person  under  oath.  Schenck  v.  Griffcn, 
38  N.  J.  L.  462;  King  v.  Ruckman,  20  X.  J.  Eq.  317;  Atwood  v. 
Impson,  20  N.  J.  Eq.   151. 

Not  proper  to  admit  evidence  that  witness  is  quarrelsome.  State 
v.  Hairs,  Coxe,  453. 

Evidence  of  witness'  reputation  for  truthfulness  at  a  place  where 
he  lived  eighteen  years  before  properly  excluded.  Shuster  v.  Stale, 
62  K  J.  L.  521. 

The  impeaching  witness  may  be  asked  whether  he  would  believe 
the  other  witness  on  oath.  State  v.  Polhemus,  65  N.  J.  L.  387 ; 
King  v.  Ruckman,  20  N.  J.  Eq.  316. 

Impeaching  one's  own  witness. —  A  party  may  discredit  a  subscrib- 
ing witness  whom  the  law  requires  him  to  call.  Beake  v.  Birdsall, 
Coxe,  15. 

Impeaching  the  character  of  one's  own  witness  is  not  permitted,, 
but  other  evidence  may  contradict  him  as  to  a  fact.  Skellinger  v. 
Howell,  3   Hal.   310. 

One  cannot  contradict  his  own  witness  by  proving  previous  in- 
consistent declarations  made  by  such  witness.  Brewer  v.  Porch,  2. 
Harr.  377. 

A  party  may  show  that  what  his  own  witness  says  is  untrue. 
Thorp  v.  Leibrecht,  56  N.  J.  Eq.  499. 

Maryland. 

Authorities. —  It  may  be  shown  that  a  witness  offered  for  a  sum 
of  money  to  leave  the  State  and  not  to  testify.  Chelton  v.  State,  45 
Md.  564. 

The  impeaching  witness  may  be  cross-examined  as  to  his  mean* 
of  knowledge.     Sloan  v.  Edivards,  61   Md.  89. 

The  veracity  of  a  witness  cannot  be  impeached  by  showing  that 
he  often  got  drunk  and  accused  people  of  stealing  from  him.  Hoff- 
man v.  State,  93  Md.  388. 

The  credibility  of  a  witness  cannot  be  impeached  by  proof  that  he 
had  been  indicted  for  false  pretenses.  Bonaparte  v.  Thayer,  95  Md. 
548. 

Impeaching  witnesses  may  themselves  be  impeached  in  like  man- 
ner as  other  witnesses.    Wyeth  v.  Walzl,  43  Md.  426. 


Chap.  XVI.]  THE  LAW  OF  EVIDENCE.  62? 

A  witness  who  says  he  knows  another's  reputation  for  truth  an.T 
veracity  among  his  business  associates  but  not  among  his  genera? 
associates  is  not  competent.     Bonaparte  v.  Thayer,  95  Md.  548. 

Credibility  on  oath. —  The  impeaching  witness  may  say  whether 
he  would  believe  the  impeached  witness  on  oath.  Knight  v.  House,. 
29  Md.   194. 

The  impeaching  witness  must  be  asked  whether  he  knows  one's 
general  reputation  in  the  neighborhood  and  then  what  it  is ;  he 
may  then  be  asked  whether  he  would  believe  such  person  on  oath 
Sloan  v.  Edwards,  61  Md.  89. 

Impeaching  one's  own  witness. —  One  may  not  impeach  the  credit 
of  his  own  witness.  Queen  v.  State,  5  H.  &  J.  232;  Hepburn's  Case. 
3  Bland,  95;  B.  &  0.  It.  Co.  v.  Woodward,  41  Md.  268. 

Sustaining  witness. —  An  impeached  witness  may  be  sustained  by 
evidence  of  his  good  reputation.     Vernon  v.  ^Tucker,  30  Md.  450. 

When  a  witness  is  impeached  he  may  be  sustained  by  proof  that 
his  general  reputation  is  good  by  witnesses  who  are  acquainted  with 
it;  they  may  say  that  they  would  believe  the  person  on  oath.  Sloan 
v.  Edioards,  61  Md.  89. 

When  a  witness  has  been  impeached  by  showing  that  he  has  cor 
rupt  motives  or  fabricated  evidence,  he  may  be  sustained  by  proving 
former   statements   that   he   made  before   such   motives   could   exist. 
Baltimore,  etc.,  Ity.  Co.  v.  Knee,  83  Md.  77.     See  also  Railway  Ca. 
v.  Cooney,  87  Md.  261. 

Pennsylvania. 

Authorities. —  Bogle  v.  Kreitzer,  46  Pa.  465;  Kimmel  v.  Kimmel,  3 
S.  &  R.  336. 

A  discrediting  witness  should  be  asked  as  to  his  acquaintance 
with  the  witness  to  be  impeached,  as  to  his  knowledge  of  such 
witness'  general  reputation  for  truth  and  veracity  in  the  neighbor- 
hood where  he  lives,  as  to  what  that  reputation  is,  and  then  he 
may  be  asked  whether  he  would  believe  such  witness  on  oath.  Bogle 
v.  Kreitzer,  46  Pa.  465. 

A  witness  may  be  impeached  by  showing  that  he  lied  as  to  some 
things  in  his  testimony.  Stahle  V.  Spohn,  8  S.  &  R.  317:  Fehley  v. 
Barr,  66  Pa.  196. 


628  A  DIGEST  OF  [Pabt  III. 

Cross-examination  of  the  impeaching  witness.  Hepworth  v. 
Henshall,  153  Pa.  592. 

Time  and  place  of  reputation. —  Evidence  as  to  the  credibility  of 
a  witness  four  years  before  the  trial  is  not  admissible.  Miller  v. 
Miller,    187   Pa.   572. 

The  reputation  of  a  witness  for  veracity  that  is  material  is  his 
reputation  at  the  time  he  testifies,  not  his  reputation  at  remote 
times.     Smith  v.  Hine,  179  Pa.  203. 

Testimony  as  to  reputation  for  veracity  need  not  be  confined  to 
the  immediate  neighborhood.     Chess  v.  Chess,  1  P.  &  W.  32. 

Belief  on  oath. — ■  One  cannot  state  that  he  would  believe  another 
on  oath  until  he  says  he  knows  such  other's  good  general  reputa- 
tion for  truth  and  veracity.     Lyman  v.  Philadelphia,  56  Pa.  488. 

General  reputation  not  specific  instances. —  The  impeaching  testi- 
mony must  be  as  to  general  character,  not  as  to  particular  acts  or 
as  to  what  specific  individuals  say.  WiJce  v.  Light ner,  11  S.  &  E. 
198;  Ramsay  v.  Johnson,  3  P.  &  W.  293. 

Character  for  care,  skill,  or  truth  cannot  be  established  by  proof 
of  specific  acts.     Frontier  v.  Railroad  Co.,  38  Pa.   104. 

Character  for  drunkenness  is  not  admissible.  Brindle  v.  Mc- 
Ilvaine,  10  S.  &  E.  282.  Xor  is  character  for  chastity.  Gilchrist 
V.  McKee,  4  Watts,  380. 

Party's  own  witness. —  One  may  not  impeach  the  credibility  of  his 
own  witness;  but  he  may  put  in  evidence  contradicting  him. 
Stearns  v.  Bank,  53  Pa.  490:  Ayres  v.  Wattson,  57  Pa.  360;  Stock- 
ton v.  Demuth,  7  Watts,  39. 

Necessary  and  hostile  witnesses. —  A  party  may  discredit  his  own 
witness  when  he  is  hostile  and  the  party  is  compelled  to  call  him  tc 
account  for  the  nonintroduction  of  a  contract  in  the  hands  of  the 
adverse  party.     Morris  v.   Guffey,  188  Pa.  534. 

When  a  party  is  obliged  to  call  an  attesting  witness  tc  a  deed,  he 
may  impeach  the  credibility  of  such  witness.  Hart  v.  Burns,  4 
dark,  337. 

Sustaining  witnesses. —  A  witness  may  be  sustained  by  evidence  of 
"his  good  reputation  in  a  county  where  he  formerly  resided.  Morss 
v.  Palmer,  15  Pa.  51. 

Evidence  of  good  character  of  a  witness  is  not  admissible  unless 
impeaching  testimony  has  been  given.  Braddee  v.  Broionfield,  9 
Watts,  124;  Wertz  v.  May,  21  Pa.  274. 


0HAP.  XVI.]  TEE   LAW   OF   EVIDENCE.  021) 

Statements  made  by  a  witness  at  a  former  time  are  not  admis- 
sible to  sustain  him  when  impeached.  Craig  v.  Craig,  3  Rawle,  91: 
Com.  v.  Carey,  2  Brewst.  404;  Crooks  v.  Bunn,  136  Pa.  368.  Ex- 
cept to  show  that  the  testimony  was  not  given  because  of  some 
recent  motive.     Clever  v.  Hilberry,  116  Pa.  431. 

If  a  witness  is  impeached  he  may  be  sustained  by  showing  that 
he  testified  the  same  in  a  former  trial.  Foster  v.  Shaw,  7  S.  &  R. 
156;  Henderson  v.  Jones,  10  S.  &  R.  322;  Good  v.  Good,  7  Watts, 
195;  Bricker  v.  Lightner,  40  Pa.  199. 


Article  134. 

offences  against  women. 

When  a  man  is  prosecuted  for  rape  or  an  attempt  to 
ravish,  it  may  be  shown  that  the  woman  against  whom  the 
offence  was  committed  was  of  a  generally  immoral  charac- 
ter, although  she  is  not  cross-examined  on  the  subject.35 
The  woman  may  in  such  a  case  be  asked  whether  she  has 
had  connection  with  other  men,  but  her  answer  cannot  be 
contradicted.30  She  may  also  be  asked  whether  she  has 
had  connection  on  other  occasions  with  the  prisoner,  and  if 
she  denies  it  she  may  be  contradicted.37 

35/2.  v.  Clarke,  1817,  2  Star.  241. 

3«  R.  v.  Holmes,  1871,  1  C.  C.  R.  334. 

37/J.  v.  Martin,  1834,  6  C.  &  P.  562,  and  remarks  in  R.  v.  Holmes, 
p.  337,  per  Kelly,  C.B.  See  also  R.  v.  Cockroft,  1870,  11  Cox  410; 
41  L.  J.,  M.  C,  12,  and  R.  v.  Riley,  1887,  18  Q.  B.  D.  481. 


630  A  DIGEST  OF  [Part  III. 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  evidence  (15th  ed.),  sec.  458,  n.; 
vol.  3,  sec.  214. 

The  bad  character  of  woman  for  chastity  may  be  shown.  Com. 
v.  McDonald,  110  Mass.  405;  O'Blenis  v.  State,  47  N.  J.  L.  279;  Bed- 
good  v.  State,  115  Ind.  275. 

Particular  acts  of  unchastity  with  others  cannot  be  proved.  Gore 
v.  Curtes,  81  Me.  403;  Com.  v.  Harris,  131  Mass.  336;  Com.  v.  Regan, 
105  Mass.  593;  People  v.  McLean,  71  Mich.  307;  Shartzer  v.  State, 
€3  Md.  149;  Rice  v.  State,  35  Fla.  236;  Richie  v.  State,  58  Ind.  355. 
Contra,  State  v.  Hollenbeck,  67  Vt.  34;  Hoffman  v.  Eemerer,  44  Pa. 
St.  453;  Doyle  v.  Jessup,  29  111.  460;  £mi*/i  v.  Tart/cm,  69  Ind.  445, 
People  v.  Benson,  6  Cal.  221 ;  State  v.  Forstner,  43  N.  H.  89;  State  v. 
Knapp,  45  N.  H.  148. 

When  woman  is  under  age  of  legal  consent,  such  evidence  in  rape 
cases  has  been  held  incompetent.  People  v.  Johnson,  106  Cal.  289; 
People  v.  Abbott,  97  Mich.  484;  State  v.  Duffey,  128  Mo.  549. 

As  to  indecent  assault,  see  Mitchell  v.  Work,  13  R.  I.  G4o  :  Watrey 
v.  Ferber,  18  Wis.  525. 

In  rape  cases  the  woman's  bad  character  for  chastity  may  be  shown. 
Woods  v.  People,  55  N.  Y.  515;  Conlcey  v.  People,  1  Abb.  Dec.  418. 
And  so  in  actions  for  indecent  assault.  Gulerette  v.  McKinley,  27 
Hun,  320.     Compare  Young  v.  Johnson,  123  N.  Y.  226. 

General  reputation,  not  particular  acts. — The  character  of  the  prose- 
cutrix cannot  be  impeached  by  proof  of  particular  acts,  but  only  by 
general  reputation.     McCombs  v.  State,  8  Ohio  St.  643. 

Particular  acts  of  unchastity  with  others  cannot  be  proved.  Mc- 
Combs v.  State,  8  Ohio  St.  643. 

Particular  acts  of  unchastity  with  others  cannot  be  proved.  Con- 
tra, Doyle  v.  Jessup,  29  111.  460. 

The  bad  character  of  the  woman  for  chastity  may  be  shown.  Bed- 
good  v.  State.  115  Ind.  275. 

Particular  acts  of  unchastity  with  others  cannot  be  proved.  Richie 
v.  State,  58  Ind.  355. 

Particular  acts  of  unchastity  with  others  cannot  be  proved.  People 
v.  McLean,  71  Mich.  307. 


Chap.  XVI.]  TEE   LAW   OF  EVIDENCE.  631 

New  Jersey. 

Authority  for  text.—  O'Blenis  v.  State,  47  N.  J.  L.  279. 

In  a  prosecution  for  having  carnal  knowledge  of  a  woman  under 
the  age  of  consent,  the  defendant  may  prove  his  "reputation  for 
morality,  virtue,  and  honesty  in  living."  State  v.  Snover,  63  N.  J.  L. 
383. 

Reputation  for  chastity  may  be  proved  by  witnesses  who  move  in 
the  same  circle  and  have  never  heard  the  woman's  chastity  ques- 
tioned. State  v.  Brown,  64  N.  J.  L.  414;  Zabrislcie  \.  Stale,  43 
N.  J.  L.  644. 

Maryland. 

Evidence  that  the  prosecutrix  in  rape  had  had  intercourse  with 
another  person  is  not  admissible,  but  her  general  character  for 
chastity  may  be  proved.     Shartzer  v.  Slate,  63  Md.   141). 

One  who  is  indicted  as  the  keeper  of  a  bawdy-house  for  harboring 
the  prosecutrix  when  brought  there  by  a  man  may  show  that  the 
prosecutrix  is  a  lewd  girl  and  had  previously  been  the  inmate  of 
such  a  house  with  her  mother's  knowledge.  But  evidence  of  her 
"general  bad  character"  is  not  admissible,  Brown  v.  Stale,  72 
Md.  468. 

Pennsylvania. 

In  an  action  for  seduction  particular  acts  of  unchastity  with 
others  cannot  be  proved.     Hoffman  v.  Ke merer,  44  Pa.  453. 

Article  135. 

what  matters  may  be  proved  in  reference  to 
declarations  relevant  under  articles  25~32. 

Whenever  any  declaration  or  statement  made  by  a 
deceased  person  relevant  or  deemed  to  be  relevant  under 
Articles  25-32,  both  inclusive,  or  any  deposition  is  proved, 
all  matters  may  be  proved  in  order  to  contradict  it,  or  in 
order  to  impeach  or  confirm  the  credit  of  the  person  by 
whom  it  was  made  which  might  have  been  proved  if  that 


632  A  DIGEST  OF  [Part  III. 

person  had  been  called  as  a  witness,  and  had  denied  upon 
cross-examination  the  truth  of  the  matter  suggested.38 

AMERICAN  NOTE. 

Authorities. —  1  Greenleaf  on  Evidence   (15th  ed.),  sec.  163;  Com. 
v.  Cooper,  5  Allen    (Mass.),  495;   Carver  v.  State,  164  U.   S.  677 
Battle  v.  State,  74  Ga.  101;  People  v.  Chin  Mook  Low,  51  Cal.  597 
Lester  v.  State,  37   Fla.  382;   Reran  v.  Trice's  Excrs.,  75  Va.  690 
Richards  v.  State,  82  Wis.  172;  Dabney  v.  Mitchell,  66  Ala.  495. 

New  Jersey. 

Authority. —  Credit  of  a  d}'ing  declaration  may  be  attacked  by 
proof  of  the  conduct  of  the  declarant.  Donnelly  v.  State,  26  X.  J.  L. 
465. 

Article  136. 
refreshing  memory. 

A  witness  may,  while  under  examination,  refresh  his 
memory  by  referring  to  any  writing  made  by  himself  at  the 
time  of  the  transaction  concerning  which  he  is  questioned, 
or  so  soon  afterwards  that  the  judge  considers  it  likely  that 
the  transaction  was  at  that  time  fresh  in  his  memory. 

The  witness  may  also  refer  to  any  such  writing  made  by 
any  other  person,  and  read  by  the  witness  within  the  time 
aforesaid,  if  when  he  read  it  he  knew  it  to  be  correct.39 

An  expert  may  refresh  his  memory  by  reference  to  pro- 
fessional treatises.40 

38  7?.  v.  Drummond,  1784,  1  Lea.  337;  R.  v.  Pike,  1829,  3  C.  &  P. 
598.  In  these  cases  dying  declarations  were  excluded,  because  the 
persons  by  whom  they  were  made  would  have  been  incompetent  as 
witnesses,  but  the  principle  would  obviously  apply  to  all  the  cases  in 
question. 

39  2  Ph.  Ev.  480,  &c;  Taylor,  ss.  1406-1413;  R.  N.  P.  175-6; 
Phipson,  471-474. 

MR-ussex  Peerage  Case,  1844,  11  C.  &  F.  114-117. 


Chap.  XVI.]  THE   LAW   OF  EVIDENCE.  633 


AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (loth  ed.),  sees.  436-438; 
8  Encyclopaedia  of  Pleading  and  Practice,  p.  135;  Nat.  Bank  of  Du- 
bois v.  Nat.  Bank  of  Williamsport,  114  Pa.  St.  1;  People  v.  Cotta,  49 
Cal.  166;  Bonnet  v.  Glattfeldt,  120  111.  166;  Colloway  v.  Tamer,  77 
Ala.  541;  Mason  v.  Phelps,  48  Mich.  126;  Healy  v.  Yisalia  R.  Co., 
101  Cal.  585;  Doicner  v.  Rowell,  24  Vt.  343;  Kelsea  v.  Fletcher,  48 
N.  H.  282;  Davis  v.  FieW,  56  Vt.  426;  Chamberlain  v.  Sands,  27  Me. 
458 ;  Pinney  v.  AnoVws,  41  Vt.  631 ;  Chamberlain  v.  Ossipee,  60  N.  H. 
212;  IFeZcowie  v.  Batchelder,  23  Me.  85;  Morrison  v.  Chapin,  97  Mass. 
72;  Co#?n  v.  FincenJ,  12  Cush.  (Mass.)  98;  Fletcher  v.  Powers,  131 
Mass.  333;  Alvord  v.  CoHm,  20  Pick.  (Mass.)  418;  Crittenden  v. 
Rogers,  8  Gray  (Mass.),  452;  Parsons  v.  Manufacturers'  Ins.  Co., 
16  Gray  (Mass.),  463;  Com.  v.  Je/fs,  132  Mass.  5;  Co?ra.  v.  Ford.  130 
Mass.  64;  Com.  v.  Clancy,  154  Mass.  128;  Com.  v.  Wafson,  154  Mass. 
135;  Dugan  v.  Mahoney,  11  Allen  (Mass.),  572;  Cord  v.  Foot,  56 
Conn.  369;  J5n'e  v.  Miller,  52  Conn.  446;  Norwalk  v.  Ireland,  68  Conn. 
13. 

A  writing,  under  this  article,  is  not  evidence.  Field  v.  Thompson, 
119  Mass.  151. 

A  witness  may  be  required  to  look  at  a  memorandum.  Chapin  v. 
Lapham,  20  Pick.   (Mass.)   467. 

The  witness  need  have  no  present  recollection.  State  v.  Miller,  53 
la.  209;  Hill  v.  State,  17  Wis.  675;  Robinson  v.  Mulder,  81  Mich.  75; 
Paige  v.  Carter,  64  Cal.  489 ;  Culver  v.  Scott  Lumber  Co.,  53  Minn. 
360;  Dugan  v.  Mahoney,  11  Allen  (Mass.),  572;  Co#m  v.  Vincent.  12 
Cush.  (Mass.)  98;  Morrison  v.  Chapin,  97  Mass.  72;  Cohi.  v.  </c/fs, 
132  Mass.  5;  Costello  v.  Croivell,  133  Mass.  352. 

The  paper  need  not  have  been  written  by  the  witness.  Com.  v. 
Ford,  130  Mass.  64;  Chapin  v.  Lapham,  20  Pick.  (Mass.)  467;  Cof- 
fin v.  Vincent,  12  Cush.  (Mass.)  98:  Adac  v.  Zangs,  41  la.  536; 
Billingslea  v.  Smith,  77  N.  Y.  504;  Brown  v.  Galesburg  Brick  Co., 
132  111.  640;  Zina  v.  Faoer,  51  Pa.  St.  387.  Compare  Moots  v.  Sfafe, 
21  O.  St.  653. 

A  plaintiff  had  testified  that  she  had  earned  the  money  invested  in 
certain  bonds  in  large  part  in  her  business  as  a  milliner  and  that  she 
had  a  high  class   of  customers.     She  was   asked   the  names  of  her 


634  A  DIGEST  OF  [Part  III. 

customers,  and  in  answering  was  allowed  to  refresh  her  recollection 
by  referring  to  a  list  of  them  made  by  her  son  upon  her  dictation. 
Held,  to  be  no  error.     Card  v.  Foot,  56  Conn.  374. 

A  witness  may  refer  to  memoranda  made  by  himself  or  others  for 
the  purpose  of  refreshing  his  recollection,  and  it  is  of  no  conse- 
quence whether  the  memoranda  thus  referred  to  are  originals  or 
copies;  they  are  solely  for  the  use  of  the  witness  and  are  not  evi- 
dence to  go  to  the  jury.    Erie  Preserving  Co.  v.  Miller,  52  Conn.  446. 

The  writing  must  have  been  made,  if  by  the  witness  at  the  time  the 
transaction  was  fresh  in  mind.  Russell  v.  Hudson  River  R.  R.  Co., 
17  N.  Y.  134. 

A  motion  to  strike  out  the  testimony  of  a  witness,  because  he  tes- 
tified from  a  copy  of  a  memorandum,  must  be  made  as  soon  as  the 
fact  is  discovered.  Pitney  v.  Glens  Falls  Ins.  Co.,  61  Barb.  335,  65 
N.  Y.  6. 

The  witness  need  have  no  present  recollection.  Moots  v.  State, 
21  Ohio  St.  653. 

As  to  whether  the  paper  read  to  refresh  recollection  need  to  have 
been  written  by  the  witness,  see  Moots  v.  State,  21  Ohio  St.  653. 

A  writing  made  subsequently  to  a  transaction  and  when  by  lapse 
of  time  the  facts  cannot  be  considered  as  fresh  in  witness'  mind 
cannot  be  introduced  to  refresh  his  recollection.  Jones  v.  State,  54 
Ohio  St.  1. 

Nor  if  it",  accuracy  is  justly  questioned.  Lovell  v.  Wentworth, 
39  Ohio  St.  614. 

Refreshing  memory. —  A  witness  may  refresh  his  recollection  from 
a  memorandum.  Dunlap  v.  Berry,  4  Scam.  327;  C.  &  TV.  Coal  Co.  v. 
hiddell,  69  111.  639;  C.  &  A.  Ry.  Co.  v.  Adler,  56  111.  344;  C.  &  Y.  TV. 
Ry.  Co.  v.  McCahill,  56  111.  2S;  Seaverns  v.  Tribby,  48  111.  195; 
Elfiton  v.  Eennicott,  46  111.  187;  Bonnett  v.  Glattfeldt.  120  111.  166; 
Flynn  v.  Gardner,  3  Brad.  253. 

The  paper  need  not  have  been  written  by  the  witness.  Brown  v. 
Galesburg  Brick  Co.,  132  111.  648. 

A  witness  may  refer  to  a  copy  of  an  account  or  writing.  Bush  v. 
Stanley,  122  111.  406;  Hayden  v.  Hoxie,  27  111.  App.  533;  Massey  v. 
Farmers'  Nat.  Bank,  113  111.  334,  338;  Bonnett  v.  Glattfeldt,  120  111. 
166,  172. 

A  paper  may  be  shown  to  a  witness  on  rebuttal  to  refresh  his 
memory.     Erie  P.  D.  v.  Stanley,  22  111.  App.  459. 

A  street  car  conductor  may  refresh  his  recollection  bv  referring  to 


Chap.  XVI.]  THE  LAW   OF  EVIDENCE.  635 

a  trip  sheet.  West  Chicago  St.  Ry.  Co.  v.  Kromshinsky,  56  N.  E. 
1110,  affirming  86  111.  App.  17. 

An  invoice  or  a  copy  of  a  writing  may  be  used  by  the  witness  to 
refresh  his  recollection.  Bredt  v.  Simpson,  Hall,  Miller  &  Co.,  95 
111.  App.  333. 

The  recollection  of  a  witness  may  be  refreshed  by  showing  him  a 
published  article.     Clifford  v.  Drake,  110  111.  135. 

A  witness  may  refresh  his  recollection  by  referring  to  a  memo- 
randum. Clark  v.  State,  4  Ind.  156;  Johnson  v«  Culver,  116  Ind.  278; 
Prather  v.  Pritchard,  26  Ind.  65. 

Or  to  his  former  testimony.  Harvey  v.  State,  40  Ind.  516;  Stanley 
v.  Stanley,  112  Ind.  143;  Ehrisman  v.  Scott,  5  Ind.  596. 

Or  to  shorthand  notes.     Miller  v.  Prindle,  142  Ind.  032. 

A  stenographer  may  read  notes,  testified  by  her  to  be  correct,  of 
evidence  taken  before  the  grand  jury.  Keith  v.  State,  157  Ind.  376, 
61  N.  E.  710. 

The  error  in  allowing  entries  to  be  read  to  the  jury  when  witness 
has  personally  testified  to  having  refreshed  his  memory  from  them 
is  harmless.     Wilbur  v.  Schcrer,  13  Ind.  App.  428. 

As  to  refreshing  the  recollection  of  nonexpert  witnesses  on  the 
subject  of  handwriting,  by  looking  at  other  specimens,  see  McDonald 
v.  McDonald,  142  Ind.  55. 

Witness  may  refresh  his  memory  from  memoranda.  Johnston  v. 
Farmers'  Fire  Ins.  Co.,  100  Mich.  90;  Ford  v.  Savage,  111  Mich.  144; 
Crane  Lumber  Co.  v.  Bellows,  110  Mich.  304. 

A  witness  need  have  no  present  recollection.  Robinson  v.  Mulder, 
81  Mich.  75. 

A  witness  may  refresh  his  recollection  by  a  paper  written  by  hia 
agent  upon  which  he  has  acted  as  being  authentic.  Watkins  v.  Wal- 
lace, 19  Mich.  57. 

In  order  to  refresh  recollection,  the  attention  of  the  witness  may 
be  called  to  his  evidence  at  a  former  trial.  Beaubicn  v.  Cicotte,  12 
Mich.  459.     Compare  Bashford  v.  People,  24  Mich.  244. 

One  may  refresh  his  memory  from  a  memorandum  made  by  him- 
self. Robinson  v.  Mulder,  SI  Mich.  75;  Caldwell  v.  Boicen,  80  Mich. 
382. 

It  is  within  the  discretion  of  the  trial  court  to  allow  leading 
questions  for  the  purpose  of  refreshing  the  recollection  of  the  wit- 
ness.    Dillon  v.  Pinch,  110  Mich.  149. 


636  A  DIGEST  OF  [Part  III. 

New    Jersey. 

Memoranda  to  refresh  memory. —  Railroad  Co.  v.  May,  48  N.  J.  L. 
401. 

Entries  in  diary  may  be  used  to  refresh  recollection,  but  are  not 
themselves  admissible.     Lindenthal  v.  Hatch,  61  N.  J.  L.  29. 

Witness  may  read  from  a  memorandum  which  he  is  using  to 
refresh  his  memory.     Meyers  v.  Weger,  62  N.  J.  L.  432. 

A  witness  may  refer  to  memoranda  before  taking  the  stand  in 
order  to  refresh  his  recollection,  and  need  not  produce  the  memo- 
randa themselves.     Patton  v.  Freeman,  Coxe,  113. 

Maryland. 

Authorities. —  Evans  v.  Murphy,  87  Md.  498;  Spiker  v.  Nydegger, 
30  Md.  315. 

What  memoranda  may  be  used. —  The  memoranda  need  not  be 
original  entries,  provided  the  witness  has  independent  recollection 
of  the  facts.    Bulloch  v.  Hunter,  44  Md.  416. 

In  testifying  as  to  the  price  of  articles  the  witness  may  refer  to 
authorized  price  lists.     Morris  v.  Columbian,  etc.,  Co.,  76  Md.  354. 

When  a  witness  swears  that  an  occurrence  was  about  the  same 
date  as  a  certain  publication,  he  may  use  the  publication  to  refresh 
his  memory  as  to  the  date.     Bull  v.  Schuberth,  2  Md.  38. 

A  book  of  original  entry,  not  admissible  itself  because  made  by 
a  party  to  the  suit,  may  be  used  to  refresh  recollection.  S tailings 
v.  Got'tschalk,  77  Md.  429. 

A  notary  public  may  use  his  record  to  refresh  his  memory. 
Sasscar  v.  Bank,  4  Md.  409. 

Independent  recollection. —  A  witness  may  testify  from  a  memo- 
randum, even  though  he  has  no  independent  recollection  of  the  facts, 
if  he  knows  it  was  made  by  him  and  states  the  truth.  Martin  v. 
Good,  14  Md.  399 ;  Owens  v.  State,  67  Md.  307 ;  Billingslea  v.  Smith, 
77  Md.  504. 

A  witness  may  not  testify  from  a  memorandum  when  all  his 
knowledge  on  the  subject  is  derived  from  the  memorandum.  Lewis 
V.  Kramer,  3  Md.  205. 

An  account  may  be  used  when  the  witness  has  an  independent 
recollection  of  the  items,  though  he  could  not  enumerate  them  with- 
out assistance.     Bullock  v.  Hunter,  44  Md.  416. 

A    witness   who    is    testifying   as    to   genuineness    of   handwriting 


Chap.  XVI.]  THE  LAW   OF  EVIDENCE.  637 

may  examine  a  genuine  writing  to  refresh  his  recollection.  Smith 
v.  Walton,  S  Gill,  77. 

By  whom  the  memorandum  must  be  made. —  The  memorandum 
need  not  have  been  made  by  the  witness,  if  after  seeing  it  he  has  an 
independent  recollection.     Billingslea  v.  Smith,  77  Md.  504. 

The  memorandum  must  have  been  written  by  the  witness  himself 
at  about  the  time  of  the  transaction  set  forth  in  it.  Insurance  Co. 
V.  Evans,  15  Md.  54. 

One  may  not  use  copies  of  original  entries  when  it  does  not  appear 
when  or  by  whom  they  were  made.     Ward  v.  Leitch,  30  Md.  32G. 

Time  of  making  memorandum. —  The  memorandum  must  have  been 
made  about  the  time  of  the  transaction  and  the  witness  must  have 
then  seen  it  and  recognized  it  as  stating  the  truth.  Green  v.  Caulk, 
16  Md.  556. 

Memoranda  made  long  after  the  event  are  not  admissible  for  re- 
freshing recollection.     Swartz  v.   Chickering,  58  Md.   290. 

Pennsylvania. 

One  may  not  use  notes  taken  by  another  person  in  order  to  re- 
fresh his  memory.     Withers  v.  Atkinson,  1  Watts,  236. 

A  typewritten  copy  of  a  memorandum  permitted  to  be  used  to 
refresh  memory.     Edwards  v.  Gimbel,  202  Pa.  30. 

Character  of  the  writing  is  immaterial  if  the  witness  can  testify 
from  his  independent  recollection  after  it  is  refreshed.  Bank  of 
Dubois  v.  Bank  of  Williamsport,  114  Pa.  1. 

A  witness  may  testify  as  to  a  date  after  examining  a  con- 
temporaneous memorandum,  even  though  he  has  no  independent 
recollection.  Dodge  v.  Bache,  57  Pa.  421;  Henry  v.  Martin,  32 
Leg.  Int.   100. 

Dates,  numerous  details,  known  at  the  time  by  the  witness  to  be 
correct.     King  v.  Faber,  51  Pa.  387. 

Other  accounts  and  papers  may  be  used  to  refresh  recollection 
as  to  the  items  of  a  voluminous  account.  Insurance  Co.  v.  Hanlon, 
31   Leg.  Int.  372. 

A  book  kept  by  the  witness  which  he  knows  to  be  correct  may  be 
used  by  him  in  testifying  to  the  number  of  days  on  which  men  were 
employed.      Heart  v.    Hnmmel.   3   Pa.   414. 

Witness  may  refresh  his  memory  as  to  hand  writ  in?  by  inspecting 
a  writing  known  to  be  genuine.     McNair  v.  Com.,  26  Pa.  388. 


638  A  DIGEST  OF  [Part  III. 


Akticle  137. 
eight  of  adverse  party  as  to  writing  used  to  refresh 

MEMORY. 

Any  writing  referred  to  under  Article  136  must  be  pro- 
duced and  shown  to  the  adverse  party  if  he  requires  it; 
and  such  party  may,  if  he  pleases,  cross-examine  the  wiir 
ness  thereupon.41 

AMERICAN  NOTE. 

General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  437  et  seq.; 
8  Encyclopaedia  of  Pleading  and  Practice,  p.  142;  State  v.  Bacon,  41 
Vt.  526,  98  Am.  Dec.  616;  Com.  v.  Haley,  13  Allen  (Mass.),  587;  Com. 
v.  Burke,  114  Mass.  261;  Dugan  v.  Mahoney,  11  Allen  (Mass.),  573; 
Chute  v.  State,  19  Minn.  271;  Duncan  v.  Seeley,  34  Mich.  369;  Adoe 
v.  Zangs,  41  la.  536;  Jones  v.  State,  54  Ohio  St.  1.  See  Peck  v.  Lake, 
3  Lans.  136;  People  v.  McLaughlin,  150  N.  Y.  365,  392. 

The  adverse  party  has  a  right  to  see  at  once  a  memorandum  used 
for  the  purpose  of  refreshing  recollection.  Duncan  v.  Seeley,  34 
Mich.  369;  People  v.  Lyons,  49  Mich.  78;  Cortland  Mfg.  Co.  v.  Piatt, 
83  Mich.  419,  47  N.  W.  330. 

Maryland. 

As  to  the  writing  itself  as  evidence.     Owens  v.  State,  67  Md.  307- 

Article  138. 

giving,   as  evidence,   document   called  for  and 
produced  on  notice. 

When  a  party  calls  for  a  document  which  he  has  given 
the  other  party  notice  to  produce,  and  such  document  is- 
produced  to  and  inspected  by,  the  party  calling  for  its  pro- 

41  See  Cases  in  R.  N.  P.  176. 


Chap.  XVI.]  THE  LAW   OF  EVIDENCE.  639 

duction,  he  is  bound  to  give  it  as  evidence  if  the  party 
producing  it  requires  him  to  do  so,  and  if  it  is  or  is  deemed 
to  be  relevant.42 

AMERICAN  NOTE. 
General. 

Authorities. —  1  Greenleaf  on  Evidence  (15th  ed.),  sec.  563;  Mer- 
rill v.  Merrill,  67  Me.  70;  Austin  v.  Thompson,  45  N.  H.  113,  116; 
Penobscot  Boom  Corp.  v.  Lawson,  16  Me.  224;  Blake  v.  Russ,  33  Me. 
360;  Ellison  v.  Cruser,  40  N.  J.  L.  444;  Cushman  v.  Coleman,  92  Ga. 
772;  Edison  Light  Co.  v.  U.  S.  Lighting  Co.,  45  Fed.  Rep.  55;  Clark 
v.  Fletcher,  1  Allen  (Mass.),  53,  57;  Long  v.  Drew,  114  Mass.  77. 
Contra  to  text.  Laufer  v.  Bridgeport  Traction  Co.,  68  Conn.  485; 
Austin  v.  Thompson,  45  N.  H.  113;  Smith  v.  .Rente,  131  N.  Y.  169. 

The  mere  production  does  not  make  the  documents  evidence.  Mer- 
rill v.  Merrill,  67  Me.  70. 

See  Smith  v.  Rentz,  131  N.  Y.  169;  Rumsey  v.  Lowell,  Anth.  N.  P. 
26. 

Though  a  document  be  expressly  put  in  evidence  for  a  particular 
purpose,  the  opposite  party  may  use  it  for  any  purpose  pertinent  to 
his  case.  Kelly  v.  Dutch  Church,  2  Hill,  105;  Winants  v.  Sherman,  3 
Hill,  74. 

A  party  having  given  evidence  to  the  jury  is  not  at  liberty  to  with- 
draw it;  it  becomes  the  common  property  of  both  parties.  Decker  v. 
Bryant,  7  Barb.  182. 

The  mere  marking  of  a  paper  does  not  make  it  evidence.  Casteel  v. 
Millison,  41  111.  App.  61,  65. 

New  Jersey. 

Sustaining  text. —  Ellison  v.  Cruser,  40  N.  J.  L.  444. 

This  rule  does  not  apply  to  a  second  trial  of  the  case  unless  there 
has  been  a  new  notice  to  produce.  Ellison  v.  Cruser,  40  N.  J.  L. 
444. 

Alaryland. 

Papers  produced  on  notice  if  inspected  by  the  party  calling  them 
become  admissible  for  both  sides.  Morrison  v.  Whiteside,  17  Md. 
452. 

42  Wharam  r.  Routledge,  1805,  5  Esp.  235;  Calvert  v.  Flower,  1836r 
7  C.  &  P.  386. 


640  A  DIGEST  OF  [Part  III. 

Pennsylvania. 

This  rule  applies  only  to  such  papers  as  were  actually  called  for 
in  the  notice.     Heaffer  v.  Life  Ins.  Co.,  101  Pa.  178. 

Defendant  held  to  have  no  right  to  introduce  a  paper  in  evidence 
merely  because  the  plaintiff  called  upon  defendant  to  produce  it 
and  then  failed  to  introduce  it.    Summers  v.  M'Kim,  12  S.  &  It.  405. 

Article  139. 

using,  as  evidence,  a  document  production  of  which 
was  refused  on  notice. 

When  a  party  refuses  to  produce  a  document  which  he 
has  had  notice  to  produce,  he  may  not  afterwards  use  the 
document  as  evidence  without  the  consent  of  the  other 
party.43 

AMERICAN  NOTE. 
Authorities. —  Bogart  v.  Brown,  5  Pick.  (Mass.)  18;  Doon  v.  Dona- 
her,  113  Mass.  151.     See  also  McGuinness  v.  School  District,  39  Minn. 
499;  Powell  v.  Pearlstine,  43  S.  C.  403;  Mather  v.  Eureka  Co.,  118 
N.  Y.  629. 

New  Jersey. 
Authority. —  A  receipt  not  produced  in  accordance  with  an  order 
of  court  cannot  afterward  be  given  in  evidence.     Fleming  v.  Lawless, 
56  N".  J.  Eq.   138. 

Maryland. 
A  party  professing  his  inability  to  produce  a  document  cannot  at 
a  subsequent  trial   of  the   same  cause  require  a  notice  to  produce 
as   a   condition   to   the   introduction   of   secondary   evidence.      Union 
Banking  Co.  v.  Gittings,  45  Md.   181. 

«Z)oe  v.  Hodgson,  1840,  12  A.  &  E.  135;  but  see  remarks  in  2  Ph. 
Ev.  270. 


Chap.  XVII.]  THE  LAW   OF  EVIDENCE.  641 


CHAPTER  XVII. 

OF  DEPOSITIONS. 

Article  140. 

depositions  before  magistrates. 

A  deposition  taken  under  11  &  12  Vict.  c.  42,  s.  17,  may 
be  produced  and  given  in  evidence  at  the  trial  of  the  person 
against  whom  it  was  taken, 

if  it  is  proved  [to  the  satisfaction  of  the  judge]  that  the 
witness  is  dead,  or  so  ill  as  not  to  be  able  to  travel  [although 
there  may  be  a  prospect  of  his  recovery]  ;* 

[or,  if  he  is  kept  out  of  the  way  by  the  person  accused]2 

or,  [probably  if  he  is  too  mad  to  testify,]3  and 

if  the  deposition  purports  to  be  signed  by  the  justice  by 
or  before  whom  it  purports  to  have  been  taken ;  and 

if  it  is  proved  by  the  person  who  offers  it  as  evidence 
that  it  was  taken  in  the  presence  of  the  person  accused,  and 
that  he,  his  counsel,  or  attorney,  had  a  full  opportunity  of 
cross-examining  the  witness ; 

Unless  it  is  proved  that  the  deposition  was  not  in  fact 
signed  by  the  justice  by  whom  it  purports  to  be  signed 

[or,  that  the  statement  was  not  taken  upon  oath ; 

1  R.  v.  Stephenson,  1862,  L.  &  C.  165. 
2/?.  v.  Scaife,  1851,  17  Q.  B.  238. 
3  Analogy  of  R.  v.  Scaife. 

41 


642  A  DIGEST  OF  [Part  III. 

or  [perhaps]  that  it  was  not  read  over  to  or  signed  by  the 
witness].4 

If  there  is  a  prospect  of  the  recovery  of  a  witness  proved 
to  be  too  ill  to  travel,  the  judge  is  not  obliged  to  receive 
the  deposition,  but  may  postpone  the  trial.5 

AMERICAN  NOTE. 
General. 

Depositions. —  6  Encyclopaedia  of  Pleading  and  Practice,  p.  471; 
State  v.  George,  60  Minn.  503 ;  State  v.  Elliott,  90  Mo.  350 ;  People 
v.  Ward,  105  Cal.  652;  Brown  v.  Com.,  73  Pa.  St.  321;  Pittman  v. 
State,  92  Ga.  480;  People  v.  Dowdigan,  67  Mich.  95;  State  v.  Fitz- 
gerald, 63  la.  268;  Lucas  v.  State,  96  Ala.  51;  Boon  v.  Donaher,  113- 
Mass.  151;  Bogart  v.  Brown,  5  Pick.  (Mass.)  18;  Gage  v.  Campbell, 
131  Mass.  566;  Kingman  v.  Tirrell,  11  Allen  (Mass.),  97. 

Foreign  depositions  may  be  translated.  Christ  man  v.  Ray,  42  111. 
App.  111. 

A  deposition  may  be  admitted  in  a  subsequent  suit.  Pratt  v. 
Eendig,  128  111.  293,  303. 

A  copy  of  a  lost  deposition  may  be  read.  Gage  v.  Eddy,  167  111. 
102. 

The  court  should  not  charge  the  jury  that  testimony  in  open  court 
is  entitled  to  more  credit  than  evidence  by  way  of  depositions.  Mill- 
ner  v.  Eglin,  64  Ind.  197;  Voss  v.  Prier,  71  Ind.  128. 

As  to  agreements  with  reference  to  the  use  of  depositions  in  former 
trials,  see  Gemmill  v.  Brown,  25  Ind.  App.  6. 

The  adverse  party  may  be  examined  out  of  court.  Sec.  517  ct  seq.> 
Rev.  Stat.,  1894;  Wabash,  etc.,  Ry.  Co.  v.  Morgan,  152  Ind.  430; 
Working  v.  Gam,  148  Ind.  546;  Tullis  v.  Stafford,  134  Ind.  258; 
Gilbert  v.  Swain,  9  Ind.  App.  88;  Marvin  v.  Sager,  145  Ind.  61; 
Grant  v.  Davis,  5  Ind.  App.  116. 

*  I  believe  the  above  to  be  the  effect  of  11  &  12  Vict.  c.  42,  s.  17,  as- 
interpreted  by  the  cases  referred  to,  the  effect  of  which  is  given  by  the 
words  in  brackets,  also  by  common  practice.  Nothing  can  be  more 
rambling  or  ill-arranged  than  the  language  of  the  section  itself.  See 
2  Ph.  Ev.  87-100:  Taylor,  7th  Ed.,  s.  480. 

B  R.  v.  Tait,  1861,  2  F.  &  F.  553. 


Chap.  XVII.]  THE  LAW  OF  EVIDENCE.  643 

A  deposition  on  a  preliminary  examination  may  be  offered.  People 
v.  Prague,  72  Mich.  178.     See  p.  339,  acts  of  1895. 

New  Jersey. 
Depositions.—  G.  S.  1895,  "  Evidence,"  25-46,  63,  64,  66,  67 ;  Laws 
of  1902,  chap.  135. 

Maryland. 
Depositions.—  P.  G.  L.  1888,  art.  35,  sees.  15-34. 

Pennsylvania. 

Depositions. —  Pepper  &  Lewis'  Digest  of  Laws,  "  Evidence,"  sees. 
1-5;  "Justices  of  the  Peace,"  sees.  86-96;  "Witnesses,"  sec.  19. 

Article  141. 

DEPOSITIONS  UNDER  30  &  31  VICT.  C.  35,  S.  6. 

A  deposition  taken  for  the  perpetuation  of  testimony  in 
criminal  cases,  under  30  &  31  Vict.  c.  35,  s.  6,  may  be 
produced  and  read  as  evidence,  either  for  or  against  the 
accused,  upon  the  trial  of  any  offender  or  offence0  to  which 
it  relates — 

if  the  deponent  is  proved  to  be  dead,  or 

if  it  is  proved  that  there  is  no  reasonable  probability  that 
the  deponent  will  ever  be  able  to  travel  or  to  give  evidence, 
and 

if  the  deposition  purports  to  be  signed  by  the  justice  by 
or  before  whom  it  purports  to  be  taken,  and 

if  it  is  proved  to  the  satisfaction  of  the  Court  that  rea- 
sonable notice  in  writing7  of  the  intention  to  take  such 
deposition  was  served  upon  the  person  (whether  prosecutor 
or  accused)  against  whom  it  was  proposed  to  be  read,  and 

0  Sic.  1R.  v.  Shurmer,  1886,  17  Q.  B.  D.  323. 


644  A  DIGEST  OF  [Part  HI. 

that  such  person  or  his  counsel  or  attorney  had  or  might 
have  had,  if  he  had  chosen  to  be  present,  full  opportunity  of 
cross-examining  the  deponent.8 

Article  141a. 
depositions  under  the  foreign  jurisdiction  act,  1890. 

Where  a  person  is  charged  with  an  offence  cognizable  by 
a  British  Court  in  a  foreign  country  and  is  liable  to  be  sent 
for  trial  to  any  British  possession,  he  may,  before  being  so 
sent  for  trial,  tender  for  examination  to  the  Court  in  the 
foreign  country  any  competent  witness  whose  evidence  he 
deems  material  for  his  defence,  and  whom  he  alleges 
himself  unable  to  produce  at  the  trial  in  the  British 
possession ; 

and  the  Court  in  the  foreign  country  shall  proceed  in  the 
examination  and  cross-examination  of  the  witness  as  though 
he  had  been  tendered  at  a  trial  before  that  Court,  and  shall 
cause  the  evidence  so  taken  to  be  reduced  into  writing, 
and  shall  transmit  to  the  Criminal  Court  of  the  British 
possession  a  copy  thereof  certified  as  correct  under  the  seal 
of  the  Court  before  which  it  was  taken,  or  the  signature 
of  the  judge  of  that  Court; 

and  thereupon  the  Court  of  the  British  possession  before 
which  the  trial  takes  place  shall  allow  so  much  of  the  evi- 

8  30  &  31  Vict.  c.  35,  s.  36.  The  section  is  very  long,  and  as  the 
first  part  of  it  belongs  rather  to  the  subject  of  criminal  procedure 
than  to  the  subject  of  evidence,  I  have  omitted  it.  The  language  is 
slightly  altered.  I  have  not  referred  to  depositions  taken  before  a 
coroner  (see  50  &  51  Vict.  c.  71,  s.  4),  because  the  section  says  noth- 
ing about  the  conditions  on  which  they  may  be  given  in  evidence. 
Their  relevancy,  therefore,  depends  on  the  common  law  principles  ex- 
pressed in  Article  32.  They  must  be  signed  by  the  coroner;  but  these 
are  matters  not  of  evidence,  but  of  criminal  procedure. 


Chap.  XVII.]  THE  LAW   OF  EVIDENCE.  645 

dence  so  taken  as  would  have  been  admissible  according 
to  the  law  and  practice  of  that  Court,  had  the  witness  been 
produced  and  examined  at  the  trial,  to  be  read  and  received 
as  legal  evidence  at  the  trial.9 

Article  141b. 
depositions  of  children. 
Where  on  the  trial  of  any  person  on  indictment  for  any 
offence  of  cruelty  within  the  meaning  of  the  Prevention 
of  Cruelty  to  Children  Act,  1894,10  or  of  any  of  the 
offences  mentioned  in  the  Schedule  to  the  Act,11  the 
Court  is  satisfied  by  the  evidence  of  a  registered  medical 
practitioner  that  the  attendance  before  the  Court  of  any 
child  in  respect  of  whom  the  offence  is  alleged  to  have  been 
committed  would  involve  serious  danger  to  its  life  or 
health,    any    deposition    of    the    child    taken    under    the 

9  53  &  54  Vict.  c.  37,  s.  6. 

io The  definition  of  "cruelty"  is  contained  in  sect.  1  of  the  Act, 
which  is  as  follows: — "If  any  person  over  the  age  of  sixteen  years 
who  has  the  custody,  charge,  or  care  of  any  child  under  the  age  of 
sixteen  years,  wilfully  assaults,  ill-treats,  neglects,  abandons,  or  ex- 
poses such  child,  or  causes  or  procures  such  child  to  be  assaulted,  ill- 
treated,  neglected,  abandoned,  or  exposed  in  a  manner  likely  to  cause 
such  child  unnecessary  suffering,  or  injury  to  its  health  (including 
injury  to  or  loss  of  sight,  or  hearing,  or  limb,  or  organ  of  the  body, 
and  any  mental  derangement),"  &c,  &c. 

11  i.e.  offences  mentioned  in  the  Offences  against  the  Person  Act, 
1861  (24  &  25  Vict.  c.  100),  sect.  27  (exposing  a  child)  ;  sect.  55 
(abducting  a  girl  under  sixteen)  ;  sect.  56  (stealing  a  child)  ;  sect. 
43  (aggravated  assault,  if  the  child  is  under  sixteen)  ;  sect.  52  (in- 
decent assault  on  a  female,  if  she  is  under  sixteen)  ;  and  any  offence 
under  the  Children's  Dangerous  Performances  Act,  1879  (42  &  43 
Vict.  c.  34)  ;  and  any  other  offence  involving  bodily  injury  to  a  child 
under  the  age  of  sixteen  years. 


646  A   DIGEST   OF  [Pakt  III. 

Indictable  Offences  Act,  1848,  and  mentioned  in  Article 
140,  or  under  this  Act,  as  hereinafter  mentioned,  is  admis- 
sible in  evidence  either  for  or  against  the  accused  person 
without  further  proof  thereof — 

(a)  if  it  purports  to  be  signed  by  the  justice  by  or  before 
whom  it  purports  to  be  taken ;  and 

(b)  if  it  is  proved  that  reasonable  notice  of  the  intention 
to  take  the  deposition  has  been  served  upon  the  person 
against  whom  it  is  proposed  to  use  the  same  as  evidence, 
and  that  that  person  or  his  counsel  or  solicitor  had,  or 
might  have  had  if  he  had  chosen  to  be  present,  an 
opportunity  of  cross-examining  the  child  making  the 
deposition.12 

Where  a  justice  is  satisfied  by  the  evidence  of  a  registered 
medical  practitioner  that  the  attendance  before  a  Court  of 
any  child  in  respect  of  whom  an  offence  of  cruelty,13  or  any 
of  the  offences  mentioned  in  the  Schedule  to  the  Act,14  is 
alleged  to  have  been  committed,  would  involve  serious  dan- 
ger to  its  life  or  health,  the  justice  may  take  in  writing  the 
deposition  of  such  child  on  oath,  and  shall  thereupon  sub- 
scribe the  same,  and  add  thereto  a  statement  of  his  reason 
for  taking  the  same,  and  of  the  day  when  and  place  where 
the  same  was  taken,  and  of  the  names  of  the  persons  (if 
•any)  present  at  the  taking  thereof.  The  justice  taking  any 
such  deposition  shall  transmit  the  same  with  his  statement 
— (a)  if  the  deposition  relates  to  an  offence  for  which  any 
accused  person  is  already  committed  for  trial,  to  the  proper 

1257  &  58  Vict.  c.-41,  s.  14.  "See  Note  11,  p.  490. 

14  See  Note  10,  p.  489. 


Chap.  XVII.]  THE  LAW   OF  EVIDENCE.  647 

officers  of  the  Court,  for  trial  at  which  the  accused  person 
has  been  committed ;  and  (&)  in  any  other  case  to  the  clerk 
of  the  peace  of  the  county  or  borough  in  which  the  deposi- 
tion has  been  taken.15 

The  deposition  of  the  child  referred  to  in  this  article 
need  not  be  taken  on  oath  in  the  case  mentioned  in 
Article  123a. 

Article  142. 
depositions  under  merchant  shipping  act,  1894. 

16  Whenever,  in  the  course  of  any  legal  proceedings  in- 
stituted in  any  part  of  Her  Majesty's  dominions  before  any 
judge  or  magistrate  or  before  any  person  authorised  by  law 
or  by  consent  of  parties  to  receive  evidence,  the  testimony 
of  any  witness  is  required  in  relation  to  the  subject- 
matter  of  that  proceeding,  any  deposition  that  such  witness 
may  have  previously  made  on  oath  in  relation  to  the 
same  subject-matter  before  any  justice  or  magistrate  in 
Her  Majesty's  dominions  or  any  British  consular  officer 
elsewhere  is  admissible  in  evidence,  subject  to  the  following 
restrictions : — 

1.  If  such  proceeding  is  instituted  in  the  United  King- 
dom or  British  possessions,  due  proof  must  be  given  that 
such  witness  cannot  be  found  in  that  kingdom  or  possession 
respectively. 

IB  57  &  58  Vict.  c.  41,  s.  13. 

16  Id.  c.  60,  s.  691.  There  are  some  other  cases  in  which  deposi- 
tions are  admissible  by  statute,  but  they  hardly  belong  to  the  Law 
of  Evidence. 


648  A   DIGEST   OF  [Pabt  III. 

2.  If  such  deposition  was  made  in  the  United  Kingdom, 
it  is  not  admissible  in  any  proceeding  instituted  in  the 
United  Kingdom. 

3.  If  the  deposition  was  made  in  any  British  possession, 
it  is  not  admissible  in  any  proceeding  instituted  in  that 
British  possession. 

4.  If  the  proceeding  is  criminal  the  deposition  is  not 
admissible  unless  it  was  made  in  the  presence  of  the  person 
accused. 

A  deposition  so  made  must  be  authenticated  by  the  sig- 
nature of  the  judge,  magistrate,  or  consular  officer  before 
whom  it  was  made,  and  he  must  certify  (if  the  fact  is  so) 
that  the  accused  was  present  at  the  taking  thereof. 

It  is  not  necessary  in  any  case  to  prove  the  signature  or 
the  official  character  of  the  person  appearing  to  have  signed 
any  such  deposition;  and  in  any  criminal  proceeding  the 
certificate  aforesaid  is  (unless  the  contrary  is  proved) 
sufficient  evidence  of  the  accused  having  been  present  in 
manner  thereby  certified. 

Nothing  in  this  article  contained  affects  any  provision 
by  Parliament  or  by  any  local  legislature  as  to  the  admis- 
sibility of  depositions  or  the  practice  of  any  court  according 
to  which  depositions  not  so  authenticated  are  admissible  as 
evidence. 


Chap.  XVIII.]         THE   LAW   OF  EVIDENCE.  649 


CHAPTER  XVIII. 

OF  IMPROPER  ADMISSION  AND  REJECTION  OF  EVIDENCE. 

Article  143. 

A  new  trial  will  not  be  granted  in  any  civil  action  on  the 
ground  of  the  improper  admission  or  rejection  of  evidence, 
unless  in  the  opinion  of  the  Court  to  which  the  application 
is  made  some  substantial  wrong  or  miscarriage  has  been 
thereby  occasioned  in  the  trial  of  the  action.1 

If  in  a  criminal  case  evidence  is  improperly  rejected  or 
admitted,  there  is  no  remedy  unless  the  prisoner  is  con- 
victed, and  unless  the  judge,  in  his  discretion,  states  a  case 
for  the  Court  for  Crown  Cases  Reserved ;  but  if  that  Court 
is  of  opinion  that  any  evidence  was  improperly  admitted  or 
rejected,  it  must  set  aside  the  conviction. 

AMERICAN  NOTE. 
General. 

Authority. —  2  Encyclopaedia  of  Pleading  and  Practice,  p.  1. 

First  paragraph  of  text.  Hornbackle  v.  Stafford,  111  U.  S.  389; 
Gilbert  v.  Moline  Co.,  119  U.  S.  491;  Bulkley  v.  Devine,  127  111.  406; 
Oirard  Ins.  Co.  v.  Warr,  46  Pa.  St.  504;  Ham  v.  Wis.,  etc.,  R.  Co., 
61  la.  716;  Thorndike  v.  Boston,  1  Mete.  (Mass.)  242;  Richardson 
y.  Warren,  6  Allen  (Mass.),  552;  Flood  v.  Clemence,  106  Mass.  299; 
Barry  x.  Bennett,  7  Mete.  ( Mass. )  354 ;  Holbrook  v.  Jackson,  7  Cush. 
(Mass.)    136;   Toapley  v.  Forbes,  2  Allen    (Mass.),  20;   McAvoy  v. 

1  S.  C.  R.,  Order  XXXIX.,  6. 


G50  A   DIGEST   OF  [Part  III. 

Wright,  137  Mass.  207;  State  v.  Alford,  31  Conn.  40;  Morehouse  v. 
Remson,  59  Conn.  401;  State  v.  Einkead,  57  Conn.  157;  People's  Sav. 
Bank  v.  Noricalk,  56  Conn.  558;  Bradley  v.  Bailey,  56  Conn.  379; 
ifot'n's  Appeal,  73  Conn.  638,  48  Atl.  966. 

The  fact  that  evidence  was  erroneously  admitted  or  rejected  will 
not  insure  the  granting  of  a  new  trial  in  a  criminal  case  where  the 
defendant  manifestly  could  not  have  been  injured  thereby.  Ryan  v. 
State,  83  Atl.  (N.  J.)  672;  Wallace  v.  People,  159  111.  446;  Peo- 
ple v.  Marshall,  112  Cal.  442. 

An  error  in  the  admission  of  incompetent  evidence,  in  a  court  of 
record,  is  cured  by  a  subsequent  direction  to  the  jury  to  disregard 
it.     People  v.  Parish,  4  Den.  153. 

Striking  out  of  competent  evidence  is  no  ground  for  reversing  a 
judgment,  where  testimony  to  the  same  general  affect  is  subsequently 
admitted.  Miller  v.  Fort  Lee  Park  &  Steamboat  Co.,  73  Hun,  150; 
affirmed  in  149  N.  Y.  598.     (No  opinion.) 

When  improper  evidence  has  been  erroneously  received,  a  direc- 
tion to  disregard  it  is  equivalent  to  striking  it  out.  Mattes  v. 
Frankel,  65  Hun,  203,  47  N.  Y.  St.  R.  507. 

Harmless  error  disregarded. —  Minis  v.  State,  16  Ohio  St.  221,  233. 

A  reversal  is  not  necessarily  required  by  irrelevant  evidence,  but 
if  there  is  excitement  and  the  accused  was  prejudiced  a  reversal 
would  be  granted.     Sharkey  v.  Ctate,  4  Ohio  Circ.  Ct.  101. 

Waiver. —  Objection  to  evidence  must  be  made  at  the  trial;  other- 
wise the  point  is  waived.  St.  L.,  A.  d  T.  H.  R.  R.  Co.  v.  Eggmann, 
161  111.  155. 

Curing  error. —  Errors  in  the  admission  of  evidence  may  be  cured 
by  subsequent  exclusion.  Taylor  v.  Cox,  153  111.  221;  C.  &  O.  T. 
Ry.  Co.  v.  Gaeinowski,  155  111.  189.  Compare  Norris  v.  Warner,  59 
111.  App.  300. 

Errors  in  ruling  in  evidence  may  be  cured  in  the  charge.  Mc- 
tfamara  v.  Godair,  161  111.  228. 

Error  in  admitting  evidence  is  not  cured  by  a  direction  in  a 
charge  to  disregard  it.  Chicago  v.  W.  &  L.  0.  &  L.  Mfg.  Co.,  14  111. 
219;  Peck  v.  Cooper,  13  Brad.  27. 

Presumed  to  be  prejudicial. —  Irrelevant  evidence  is  presumed  to  be 
injurious.  Johnson  v.  Anderson,  143  Ind.  493;  Ohio,  etc.,  Ry.  Co.  v. 
Stein,  133  Ind.  243,  246. 

It  is  presumed  that  evidence  improperly  admitted  influenced  the 
trial,  unless  the  contrary  appears.  Baker  v.  Dessauer,  49  Ind.  28 ; 
Barnett  v.  Leonard,  66  Ind.  422;  Thompson  v.  Wilson,  34  Ind.  94. 


Chap.  XVIII.]         THE   LAW   OF  EVIDENCE.  651 

Effect  of  evidence. — An  erroneous  admission  of  testimony  is  cured 
by  the  charge  of  the  judge  to  disregard  it  as  immaterial.  Wreggett 
v.  Barnett,  99  Mich.  477. 

The  erroneous  exclusion  of  evidence  is  cured  if  such  question  is 
subsequently  answered  or  the  answers  to  the  excluded  questions  are 
drawn  from  the  witness,  or  when  counsel  have  opportunity  to  inquire 
into  the  subject.  Mason  v.  Patrick,  100  Mich.  577;  Rice  v.  Rankans, 
101  Mich.  378;  Burt  v.  Long,  106  Mich.  210. 

Error  is  not  cured  in  a  criminal  case  where  evidence  which  has  an 
injurious  tendency  against  the  defendant  when  received  under  an 
objection  is  stricken  out.    People  v.  Fowler,  104  Mich.  449. 

New  Jersey. 

Rule  in  criminal  cases. —  Oenz  v.  State,  59  N.  J.  L.  488 ;  Ryan  v. 
State,  83  Atl.  672. 

The  admission  of  illegal  testimony  is  no  ground  for  reversal  in 
the  absence  of  injury.     Hunter  v.  State,  40  N.  J.  L.  538. 

Error  cured  by  instructions. —  Where  evidence  is  improperly  re- 
ceived, the  error  is  cured  if  the  judge  subsequently  excludes  it  in 
such  manner  that  the  accused  could  not  be  injuriously  affected. 
Bullock  v.  State,  65  N.  J.  L.  557;  State  v.  Sprague,  64  N.  J.  L.  419. 

Civil  cases. —  Not  reversible  error  when  the  exclusion  of  evidence 
works  no  injury.  Freeman  v.  Bartlett,  47  X.  J.  L.  33;  Nordsick  v. 
Baxter,  64  N.  J.  L.  530. 

The  error  of  admitting  oral  evidence  of  a  writing  without  pro- 
ducing the  writing  itself  is  cured  if  the  writing  be  afterward  pro- 
duced. Lyons  v.  Davis,  30  N".  J.  L.  301;  Kutzmeyer  v.  Ennis,  27 
N.  J.  L.  371. 

Verdict  not  set  aside  because  merely  cumulative  evidence  was  im- 
properly admitted,  when  there  was  sufficient  legal  evidence  to  justify 
the  verdict.     Chase  v.  Caryl,  57  N.  J.  L.  545. 

Maryland. 

Authorities. —  Heptasophs  v.  ]\Iilcs,  92  Md.  613. 

No  reversal  for  error  in  admission  of  evidence  unless  injury  be 
shown.  Coal  Co.  v.  Cox,  39  Md.  1;  Williams  v.  Higgms,  30  Md. 
404;  Beatty  v.  Mason,  30  Md.  409;  Hayes  v.  Wells,  34  Md.  512; 
Wyeth  v.  Walzl,  43  Md.  426;  B.  &  O.  R.  Co.  v.  Cain,  81  Md.  87; 
B.  &  O.  R.  Co.  v.  Chambers,  81  Md.  371;    Lake  Roland  R.   Co.  v. 


052        DIGEST,  LAW  OF  EVIDENCE.     [Past  III,  Chap.  XVIII.] 

Hibernian  Society,  83  Md.  420;  B.  tt  0.  R.  Co.  v.  Strunz,  79  Md. 
335. 

When  improper  evidence  was  admitted  as  to  facta  which  were 
proved  by  other  and  competent  evidence  there  will  be  no  reversal. 
Leffler  v.  Allard,  18  Md.  545;  Hayes  v.  Wells,  34  Md.  512;  Black  v. 
Batik,  96  Md.  399. 

If  evidence  that  was  improperly  admitted  is  withdrawn  and  the 
jury  instructed  to  disregard  it,  the  error  is  cured.  Williams  v. 
Higgins,  30  Md.  404;  Boone  v.  Purnell,  28  Md.  607. 

No  reversal  for  the  refusal  to  admit  evidence  so  indirect  and  in- 
conclusive that  there  could  have  been  no  injury.  Buschman  v. 
Codd,  52  Md.  202. 

Pennsylvania. 

Authorities. —  Steel  v.  Glass,  189  Pa.  283;  Insurance  Co.  v.  Marr, 
46  Pa.  504. 

Error  cured  by  instruction  to  the  jury  to  disregard.  Costello  v. 
Costello,  191  Pa.  379. 

The  introduction  of  an  incorrect  model  of  a  house  where  murder 
was  committed  is  no  ground  for  reversal  when  no  injury  is  shown. 
Com.  v.  Fry,  198  Pa.  379. 

An  error  in  admitting  a  witness  whose  incompetency  is  brought 
out  on  cross-examination  is  cured  by  instructing  the  jury  to  dis- 
regard the  testimony.     Lester  v.  McDowell,  18  Pa.  91. 

Where  a  witness  is  excluded  as  incompetent,  and  the  facts  are 
later  proved  by  other  testimony  and  are  undisputed,  there  is  no 
error.     Powell  v.  Derickson,  178  Pa.  612. 

No  reversal  for  the  admission  of  improper  testimony  when  the 
facts  are  abundantly  sustained  by  proper  evidence.  Com.  t, 
Lenousky,  206  Pa.  277. 

The  admission  of  incompetent  evidence  and  the  withdrawal  of  It 
later  before  the  argument  is  no  ground  for  a  continuance  or  a 
reversal.     Rathgeoe  v.  Railroad  Co.,  179  Pa.  31. 


APPENDIX    OF    NOTES 


NOTE  I. 

(To  Abticle  i. —  Definition  of  Teems.) 

The  definitions  are  simply  explanations  of  the  senses  in 
which  the  words  defined  are  used  in  this  work.  They  will 
be  found,  however,  if  read  in  connection  with  my  '  Intro- 
duction to  the  Indian  Evidence  Act/  to  explain  the  manner 
in  which  it  is  arranged. 

I  use  the  word  "  presumption  "  in  the  sense  of  a  pre- 
sumption of  law  capable  of  being  rebutted.  A  presumption 
of  fact  is  simply  an  argument.  A  conclusive  presumption 
I  describe  as  conclusive  proof.  Hence  the  few  presump- 
tions of  law  which  I  have  thought  it  necessary  to  notice  are 
the  only  ones  I  have  to  deal  with. 

In  earlier  editions  of  this  work  I  gave  the  following 
definition  of  relevancy. 

"  Facts,  whether  in  issue  or  not,  are  relevant  to  each 
other  when  one  is,  or  probably  may  be,  or  probably  may 
have  been  — 

the  cause  of  the  other ; 

the  effect  of  the  other ; 

an  effect  of  the  same  cause; 

a  cause  of  the  same  effect ; 

[653] 


654  A  DIGEST  OF 


or  when  the  one  shows  that  the  other  must  or  cannot  have 
occurred,  or  probably  does  or  did  exist,  or  not; 

or  that  any  fact  does  or  did  exist,  or  not,  which  in  the 
common  course  of  events  would  either  have  caused  or  have 
been  caused  by  the  other ; 

provided  that  such  facts  do  not  fall  within  the  exclusive 
rules  contained  in  Chapters  III.,  IV.,  V.,  VI. ;  or  that  they 
do  fall  within,  the  exceptions  to  those  rules  contained  in 
those  chapters." 

This  was  taken  (with  some  verbal  alterations)  from  a 
pamphlet  called  '  The  Theory  of  Relevancy  for  the  purpose 
of  Judicial  Evidence,  by  George  Clifford  Whitworth,  Bom- 
bay Civil  Service.     Bombay,  1875.' 

The  7th  section  of  the  Indian  Evidence  Act  is  as  follows : 
"  Facts  which  are  the  occasion,  cause,  or  effect,  immediate 
or  otherwise,  of  relevant  facts  or  facts  in  issue,  or  which 
constitute  the  state  of  things  under  which  they  happened, 
or  which  afforded  an  opportunity  for  their  occurrence  or 
transaction,  are  relevant." 

The  11th  section  is  as  follows:  — 

"  Facts  not  otherwise  relevant  are  relevant ; 

"  (1)  If  they  are  inconsistent  with  any  fact  in  issue  or 
relevant  fact; 

"  (2)  If  by  themselves,  or  in  connection  with  other  facts, 
they  make  the  existence  or  non-existence  of  any  fact  in 
issue,  or  relevant  fact,  highly  probable  or  improbable." 

In  my  '  Introduction  to  the  Indian  Evidence  Act,'  I 
examined  at  length  the  theory  of  judicial  evidence,  and 
tried  to  show  that  the  theory  of  relevancy  is  only  a  particu- 
lar case  of  the  process  of  induction,  and  that  it  depends  on 


THE  LAW  OF  EVIDENCE.  655 

the  connection  of  events  as  cause  and  effect.  This  theory 
does  not  greatly  differ  from  Bentham's,  though  he  does  not 
seem  to  me  to  have  grasped  it  as  distinctly  as  if  he  had 
lived  to  study  Mill's  Inductive  Logic. 

My  theory  was  expressed  too  widely  in  certain  parts,  and 
not  widely  enough  in  others;  and  Mr.  Whitworth's  pam- 
phlet appeared  to  me  to  have  corrected  and  completed  it  in 
a  judicious  manner.  I  accordingly  embodied  his  definition 
of  relevancy,  with  some  variations  and  additions,  in  the  text 
of  the  first  edition.  The  necessity  of  limiting  in  some  such 
way  the  terms  of  the  11th  section  of  the  Indian  Evidence 
Act  may  be  inferred  from  a  judgment  by  Mr.  Justice  West 
(of  the  High  Court  of  Bombay),  in  the  case  of  R.  v.  Parb- 
hudas  and  others,  printed  in  the  '  Law  Journal,'  May  27, 
1876.  I  have  substituted  the  present  definition  for  it,  not 
because  I  think  it  wrong,  but  because  I  think  it  gives  rather 
the  principle  on  which  the  rule  depends  than  a  convenient 
practical  rule. 

As  to  the  coincidence  of  this  theory  with  English  law,  I 
can  only  say  that  it  will  be  found  to  supply  a  key  which 
will  explain  all  that  is  said  on  the  subject  of  circumstantial 
evidence  by  the  writers  who  have  treated  of  that  subject. 
Mr.  Whitworth  goes  through  the  evidence  given  against 
the  German,  Miiller,  executed  for  murdering  Mr.  Briggs 
on  the  North  London  Railway,  and  shows  how  each  item 
of  it  can  be  referred  to  one  or  the  other  of  the  heads  of 
relevancy  which  he  discusses. 

The  theory  of  relevancy  thus  expressed  would,  I  believe, 
suffice  to  solve  every  question  which  can  arise  upon  the 
subject;  but  the  legal  rules  based  upon  an  unconscious 


656  A  DIGEST  OF 


apprehension  of  the  theory  exceed  it  at  some  points  and 
fall  short  of  it  at  others. 

NOTE  II. 

(To  Article  2. —  Relevance.) 

See  1  Ph.  Ev.  493,  &c. ;  Best,  se.  Ill  and  251 ;  Taylor, 
Pt.  II.  Ch.  II. ;  Phipson,  49-52. 

For  instances  of  relevant  evidence  held  to  be  insufficient 
for  the  purpose  for  which  it  was  tendered  on  the  ground  of 

remoteness,  see  R.  v.  ,  1826,  2  C.  &  P.  459;  and 

Mann  v.  Lang,  1835,  3  A.  &  E.  699. 

Mr.  Taylor  (s.  949)  adopts  from  Professor  Greenleaf  the 
statement  that  there  is  "  evidence  which  the  law  excludes  on 
public  grounds,  namely,  that  which  involves  the  unneces- 
sary disclosure  of  matter  that  is  indecent  or  offensive  to 
public  morals,  or  injurious  to  the  feelings  of  third  persons." 
The  authorities  given  for  this  are  actions  on  wagers  which 
the  Court  refused  to  try,  or  in  which  they  arrested  judg- 
ment, because  the  wagers  were  in  themselves  impertinent 
and  offensive,  as,  for  instance,  a  wager  as  to  the  sex  of  the 
Chevalier  D'Eon  (Da  Costa  v.  Jones,  1778;  Cowp.  729). 
No  action  now  lies  upon  a  wager,  and  I  can  find  no  author- 
ity for  the  proposition  advanced  by  Professor  Greenleaf. 
I  know  of  no  case  in  which  a  fact  in  issue  or  relevant  to  an 
issue  which  the  Court  is  bound  to  try  can  be  excluded 
merely  because  it  would  pain  some  one  who  is  a  stranger  to 
the  action.  Indeed,  in  Da  Costa  v.  Jones,  Lord  Mansfield 
said  expressly:  "  Indecency  of  evidence  is  no  objection  to 
its  being  received  where  it  is  necessary  to  the  decision  of  a 


THE  LAW  OF  EVIDENCE.  657 

civil  or  criminal  right  "  (p.  734).      (See  Article  129,  and 
Note  XLVI.) 

NOTE  III. 

(To  Akticle  4. —  Acts  of  Conspirators.) 

On  this  subject,  see  also  1  Ph.  Ev.  157-164;  Taylor,  as. 
591-595;  Best,  s.  508;  1  Euss.  on  Crimes,  528-532. 
(See,  too,  The  Queens  Case,  1820,  2  Br.  &  Bing.  309- 
10.)     Phipson,  84-5,  90-1. 

The  principle  is  substantially  the  same  as  that  of  prin- 
cipal and  accessory,  or  principal  and  agent.  When  vari- 
ous persons  conspire  to  commit  an  offence  each  makes  the 
rest  his  agents  to  carry  the  plan  into  execution.  (See, 
too,  Article  17,  Note  XL) 

NOTE  IV. 

(To  Article  5. —  Relevancy  of  Facts  constituting 

Title.) 

The  principle  is  fully  explained  and  illustrated  in  Mal- 
colmson  v.  O'Dea,  1862,  10  H.  L.  C.  593.  See  particu- 
larly the  reply  to  the  questions  put  by  the  House  of  Lords 
to  the  Judges,  delivered  by  Willes,  J.,  611-622. 

See  also  1  Ph.  Ev.  234-239 ;  Taylor,  ss.  658-667;  Best, 
s.  499. 

Mr.  Philips  and  Mr.  Taylor  treat  this  principle  as  an 
exception  to  the  rule  excluding  hearsay.  They  regard  the 
statements  contained  in  the  title-deeds  as  written  state- 
ments made  by  persons  not  called  as  witnesses.  I  think 
the  deeds  must  be  regarded  as  constituting  the  transactions 
42 


658  A  DIGEST  OF 


which  they  effect;  and  in  the  case  supposed  in  the  text, 
those  transactions  are  actually  in  issue.  When  it  is  as- 
serted that  land  belongs  to  A,  what  is  meant  is,  that  A 
is  entitled  to  it  by  a  series  of  transactions  of  which  his 
title-deeds  are  by  law  the  exclusive  evidence  (see  Article 
90).  The  existence  of  the  deeds  is  thus  the  very  fact 
which  is  to  be  proved. 

Mr.  Best  treats  the  case  as  one  of  "  derivative  evidence," 
an  expression  which  does  not  appear  to  me  felicitous. 

NOTE  V. 

(To    Article    8. —  Statements    accompanying    Acts,. 
Complaints,  &c.) 

The  items  of  evidence  included  in  this  article  are  often 
referred  to  by  the  phrase  "  res  gestae,"  which  seems  to 
have  come  into  use  on  account  of  its  convenient  obscurity. 
The  doctrine  of  "  res  gestae  "  was  much  discussed  in  the 
case  of  Doe  v.  Tatham,  1837.  In  the  course  of  the  argu- 
ment, Bosanquet,  J.,  observed,  "  How  do  you  translate  res 
gestae?  gestae,  by  whom? "  Parke,  B.,  afterwards  observed, 
"  The  acts  by  whomsoever  done  are  res  gesta?,  if  relevant  to 
the  matter  in  issue.  But  the  question  is,  what  are  rele- 
vant ?  "  (7  A.  &  E.  355.)  In  delivering  his  opinion  to 
the  House  of  Lords,  the  same  Judge  laid  down  the  rule 
thus :  "  Where  any  facts  are  proper  evidence  upon  an  issue 
[i.e.  when  they  are  in  issue,  or  relevant  to  the  issue]  all 
oral  or  written  declarations  which  can  explain  such  facts 
may  be  received  in  evidence."  (Same  Case,  4  Bing.  X.  C. 
548.)      The  question  asked  by  Baron  Parke  goes  to  the  root 


THE  LAW  OF  EVIDENCE.  659 

of  the  whole  subject,  and  I  have  tried  to  answer  it  at  length 
in  the  text,  and  to  give  it  the  prominence  in  the  statement 
of  the  law  which  its  importance  deserves. 

Besides  the  cases  cited  in  the  illustrations,  see  cases  as  to 
statements  accompanying  acts  collected  in  1  Ph.  Ev. 
152-57;  Taylor,  ss.  583-91;  and  Phipson,  236-43.  I 
have  stated,  in  accordance  with  R.  v.  Walker,  1839,  2  M.  & 
K.  212,  that  the  particulars  of  a  complaint  are  not  admis- 
sible; but  I  have  heard  Willes,  J.,  rule  that  they  were  on 
several  occasions,  vouching  Parke,  B.,  as  his  authority. 
jR.  v.  Walker  was  decided  by  Parke,  B.,  in  1839.  Though 
he  excluded  the  statement,  he  said,  "  The  sense  of  the  thing 
certainly  is,  that  the  jury  should  in  the  first  instance  know 
the  nature  of  the  complaint  made  by  the  prosecutrix,  and 
all  that  she  then  said.  But  for  reasons  which  I  never  could 
understand,  the  usage  has  obtained  that  the  prosecutrix's 
counsel  should  only  inquire  generally  whether  a  complaint 
was  made  by  the  prosecutrix  of  the  prisoner's  conduct 
towards  her,  leaving  the  prisoner's  counsel  to  bring  before 
the  jury  the  particulars  of  that  complaint  by  cross- 
examination." 

Lord  Bramwell  was  in  the  habit,  during  the  latter  part  of 
his  judicial  career,  of  admitting  the  complaint  itself,  and 
other  judges  have  sometimes  done  the  same.  The  practice 
is  certainly  in  accordance  with  common  sense. 

The  author's  note  is  here  left  as  he  wrote  it.  His  own 
practice  on  the  Bench  was  the  same  as  that  which  he 
ascribes  to  Willes,  J.,  Parke,  B.,  and  Lord  Bramwell,  and 
the  same  course,  of  admitting  the  terms  of  the  complaint 
as  part  of  the  evidence  for  the  prosecution,  was  habitually 


660  A  DIGEST  OF 


followed  by  Mr.  (now  Lord)  Justice  Smith,  and  the  late 
Mr.  Justice  Cave,  as  long  as  they  were  Judges  of  the 
Queen's  Bench  Division. 

Since  the  last  edition  of  this  work  was  published,  the  law 
on  the  subject  has  been  enlarged,  if  not  elucidated,  by  the 
decision  of  B.  v.  Lillyman,  [1896],  2  Q.  B.  167. 

The  count  upon  which  Lillyman  was  substantially  tried, 
and  upon  which  alone  (ib.  at  p.  170)  he  was  convicted, 
charged  that  he  unlawfully  attempted  to  have  carnal  know- 
ledge of  a  girl  under  sixteen  and  over  thirteen.  The 
question  of  her  consent  was  therefore  immaterial  (Criminal 
Law  Amendment  Act,  1885,  s.  5,  by  which  the  offence  was 
created).  In  giving  her  evidence,  however,  the  girl  as- 
serted that  she  did  not  consent  to  the  attempt.  Sir  Henry 
Hawkins  admitted  evidence  of  the  terms  of  a  complaint 
made  by  the  girl  to  her  mistress,  in  the  absence  of  the  pris- 
oner, very  shortly  after  the  commission  of  the  acts  charged. 
The  prisoner  was  convicted,  and  the  case  was  reserved  on 
the  question  whether  this  evidence  was  admissible.  The 
Court  (Lord  Kussell,  C.J.,  Pollock,  B.,  Hawkins,  Cave, 
and  Wills,  JJ.)  affirmed  the  conviction.  The  ground  of  the 
decision  is  clearly  stated  in  two  passages  of  the  judgment 
of  the  Court,  delivered  by  Sir  Henry  Hawkins.  "  It  [the 
complaint]  is  clearly  not  admissible  as  evidence  of  the 
facts  complained  of.  .  .  .  The  complaint  can  only  be  used 
as  evidence  of  the  consistency  of  the  conduct  of  the  prosecu- 
trix with  the  story  told  by  her  in  the  witness-box,  and  as 
being  inconsistent  with  her  consent  to  that  of  which  she 
complains  "  (ib.  at  p.  170).  "  The  evidence  is  admissible 
only  upon  the  ground  that  it  was  a  complaint  of  that  which 


THE  LAW  OF  EVIDENCE.  661 

is  charged  against  the  prisoner,  and  can  be  legitimately 
used  only  for  the  purpose  of  enabling  the  jury  to  judge  for 
themselves  whether  the  conduct  of  the  woman  was  consist- 
ent with  her  testimony  on  oath  given  in  the  witness-box 
negativing  her  consent,  and  affirming  that  the  acts  com- 
plained of  were  against  her  will,  and  in  accordance  with  the 
conduct  they  would  expect  in  a  truthful  woman  under  the 
circumstances  detailed  by  her"  (ib.  at  p.  177).  In  other- 
words,  the  judgment  decides  that  where  a  woman  has  made 
a  statement  as  to  her  own  consent,  which  in  the  case  before 
the  Court  happened  to  be  perfectly  irrelevant,  the  details 
of  her  complaint  may  be  admitted  only  because  they  may 
serve  as  a  test  of  the  credibility  which  ought  to  attach  to 
the  relevant  parts  of  her  testimony. 

This  view  was  reiterated  by  Sir  Henry  Hawkins  in  the 
case  of  R.  v.  Rowland  tried  at  the  Chelmsford  Summer 
Assizes,  1898  (Times,  July  6,  1898),  when  he  refused  to 
admit  evidence  of  the  terms  of  a  complaint,  though  the 
charge  was  one  of  rape ;  but,  it  must  be  inferred,  the 
woman's  consent  was  practically  not  in  issue.  The  judge 
said,  "  All  that  R.  v.  Lillyman  decided  was  that  the  terms 
of  a  complaint  were  only  admissible  as  evidence  of  a  want 
of  consent  by  the  prosecutrix,  and  not  as  evidence  of  the 
truth  of  the  charge  against  the  person  named  in  the  com- 
plaint." As  to  this  decision  it  must  be  remarked  that  even 
if  the  woman's  consent  was  not  in  issue,  and  if  nothing  but 
the  prisoner's  identity  was  disputed,  the  woman's  want  of 
consent  must  have  formed  part  of  the  story  deposed  to  by 
her,  and  the  distinction  between  this  case,  where  consent 
was  certainly  a  relevant  matter,  and  Lillyman' s  case,  where 


C62  .1  DIG  ESI'  OF 


it  certainly  was  not,  is  not  apparent.  The  same  judge,  in 
Beatty  v.  Cull  lag  worth,  1896,  60  J.  P.  740,  a  civil  suit  for 
an  assault,  held  that  the  principle  of  R.  v.  Lillyman  ap- 
plied only  to  prosecutions  for  rape  and  similar  offences, 
and  rejected  evidence  either  of  a  complaint  having  been 
made,  or  of  the  terms  of  the  complaint,  it  is  not  clear 
which,  but  probably  the  latter.  His  decision  was  ap- 
proved of  in  the  Court  of  Appeals,  Times,  January  14, 
1897. 

It  is  not  easy  to  see  why  evidence  of  the  terms  of  a 
complaint  should  be  admissible  in  order  to  test  credibility 
on  one  point  only;  and  the  Recorder  of  London  seems  to 
hold  there  is  no  such  restriction.  In  R.  v.  Folley,  [1896], 
60  J.  P.  569,  the  prisoner  and  his  wife  were  together  in  a 
room,  cries  were  heard,  and  the  wife  came  out  suffering 
from  a  wound.  At  the  trial  the  wife  deposed  that  she  had 
herself  inflicted  the  wound.  The  Recorder,  after  referring 
to  R.  v.  Lillyman,  said,  "  that  he  should  hold  that  the  prin- 
ciple of  that  case  applied  to  all  cases,"  and  allowed  a  con- 
stable to  be  recalled,  who  deposed  that  the  wife  in  giving 
him  an  account  of  what  happened,  said,  "  Mr.  Folley  done 
it."     Here  there  was  no  question  of  consent. 

The  total  result  is  that  the  law  is  not  easy  to  state  with 
confidence,  and  in  practice  the  administration  of  it  is  be- 
lieved not  to  be  uniform.  On  the  Northern  Circuit  the 
details  of  complaints  have,  since  Tallyman's  case,  been  ad- 
mitted in  all  cases  of  sexual  offences  against  women  and 
girls,  whether  or  not  the  question  of  consent  was,  in  fact  or 
legally,  at  issue ;  and  a  similar  practice  seems  to  obtain 
more  or  less  uniformly  on  other  circuits  and  at  the  Old 
TJailev. 


THE  LAW  OF  EVIDENCE.  663 


NOTE  VI. 

(To  Articles  10,  11,  12. —  Relevance  of  Similar 
Facts,  System,  &c.) 

Article  10  is  equivalent  to  the  maxim,  "  Res  inter  alios 
acta  alteri  nocere  non  debet,"  which  is  explained  and  com- 
mented on  in  Best,  ss.  506-510  (though  I  should  scarcely 
adopt  his  explanation  of  it),  and  by  Broom  ('  Maxims/ 
908-922).  The  application  of  the  maxim  to  the  Law  of 
Evidence  is  obscure,  because  it  does  not  show  how  uncon- 
nected transactions  should  be  supposed  to  be  relevant  to 
each  other.  The  meaning  of  the  rule  must  be  inferred 
from  the  exceptions  to  it  stated  in  Articles  11  and  12,  which 
show  that  it  means,  You  are  not  to  draw  inferences  from 
one  transaction  to  another  which  is  not  specifically  con- 
nected with  it  merely  because  the  two  resemble  each  other. 
They  must  be  linked  together  by  the  chain  of  cause  and 
effect  in  some  assignable  way  before  you  can  draw  your 
inference. 

In  its  literal  sense  the  maxim  also  fails,  because  it  is  not 
true  that  a  man  cannot  be  affected  by  transactions  to  which 
he  is  not  a  party.  Illustrations  to  the  contrary  are  obvious 
and  innumerable;  bankruptcy,  marriage,  indeed  every 
transaction  of  life,  would  supply  them. 

The  exceptions  to  the  rule  given  in  Articles  11  and  12 
are  generalised  from  the  cases  referred  to  in  the  Illustra- 
tions. It  is  important  to  observe  that  though  the  rule  is 
expressed  shortly,  and  is  sparingly  illustrated,  it  is  of  very 
much  greater  importance  and  more  frequent  application 
than  the  exceptions.     It  is  indeed  one  of  the  most  charac- 


664  A  DIGEST  OF 


teristic  and  distinctive  parts  of  the  English  Law  of  Evi- 
dence, for  this  is  the  rule  which  prevents  a  man  charged 
with  a  particular  offence  from  having  either  to  submit  to 
imputations  which  in  many  cases  would  be  fatal  to  him,  or 
else  to  defend  every  action  of  his  whole  life  in  order  to 
explain  his  conduct  on  the  particular  occasion.  A  state- 
ment of  the  Law  of  Evidence  which  did  not  give  due  promi- 
nence to  the  four  great  exclusive  rules  of  evidence  of  which 
this  is  one  would  neither  represent  the  existing  law  fairly 
nor  in  my  judgment  improve  it. 

The  exceptions  to  the  rule  apply  more  frequently  to 
criminal  than  to  civil  proceedings,  and  in  criminal  cases 
the  Courts  are  always  disinclined  to  run  the  risk  of  preju- 
dicing the  prisoner  by  permitting  matters  to  be  proved 
which  tend  to  show  in  general  that  he  is  a  bad  man,  and  so 
likely  to  commit  a  crime.  In  each  of  the  cases  by  which 
Article  12  is  illustrated,  the  evidence  admitted  went  to 
prove  the  true  character  of  facts  which,  standing  alone, 
might  naturally  have  been  accounted  for  on  the  supposition 
of  accident — a  supposition  which  was  rebutted  by  the  repe- 
tition of  similar  occurrences.  In  the  case  of  R.  v.  Gray 
(Illustration  (a)),  there  were  many  other  circumstances 
which  would  have  been  sufficient  to  prove  the  prisoner's 
guilt,  apart  from  the  previous  fires.  That  part  of  the  evi- 
dence, indeed,  seemed  to  have  little  influence  on  the  jury. 
Garners  Case  (Illustration  (c),  note)  was  an  extraordi- 
nary one,  and  its  result  was  in  every  way  unsatisfactory. 
Some  account  of  this  case  will  be  found  in  the  evidence 
given  by  me  before  the  Commission  on  Capital  Punish- 
ments which  sat  in  1866. 


THE  LAW  OF  EVIDENCE.  665 

NOTE    VII. 

(To  Article  13. —  Course  of  Business.) 

As  to  presumptions  arising  from  the  course  of  office  or 
business,  see  Best,  s.  403 ;  1  Ph.  Ev.  480-4 ;  Taylor,  ss. 
176-82.  The  presumption,  "  Omnia  esse  rite  acta,"  also 
applies.  See  Broom's  'Maxims,'  942;  Best,  ss.  353-65; 
Taylor,  s.  143,  &c. ;  1  Ph.  Ev.  480 ;  and  Star.  757,  763. 

NOTE  VIII. 

(To  Article  14. —  Hearsay.) 

The  unsatisfactory  character  of  the  definitions  usually 
given  as  hearsay  is  well-known.  See  Best,  s.  495  ;  Taylor, 
ss.  5  67-70. J  The  definition  given  by  Mr.  Philips  suffi- 
ciently exemplifies  it :    "  When  a  witness,  in  the  course  of 

1  See,  too,  Phipson,  pp.  200-204 ;  particularly  at  p.  202,  where  Sir 
James  Stephen's  account  of  the  objection  to  hearsay  as  evidence  is 
criticised  on  the  ground  that  it  ignores  the  possibility  of  the  rele- 
vancy of  the  fact  which  hearsay  alleges  to  have  been  stated,  and  that 
the  objection  to  its  being  stated  by  a  non-witness  ought  to  be  consid- 
ered under  the  head  of  proof  in  answer  to  the  question  how  relevant 
facts  may  be  proved.  The  answer  is  that  the  leading  feature  of  hear- 
say is  that  it  proves  a  statement  by  a  non-witness,  which,  taken 
alone,  does  not  come  within  the  definition  of  "  relevant,"  and  that  it 
is  therefore  better  treated  of  when  considering  the  question,  What 
may  be  proved?  than  in  dealing  witli  the  subsequent  question,  How 
may  a  relevant  fact  be  proved?  The  practical  advantage  of  the  au- 
thor's method  of  treatment  is  that  he  separates  admissions  and  con- 
fessions which  owe  their  force  to  the  circumstances  under  which  they 
are  made,  from  public  and  other  formal  documents  which  for  pur- 
poses of  convenience  are  made  evidence  by  the  operation  of  the  law. 


666  A  DIGEST  OF 


stating  what  has  come  under  the  cognizance  of  his  own 
senses  concerning  a  matter  in  dispute,  states  the  language 
of  others  which  he  has  heard,  or  produces  papers  which  he 
identifies  as  being  written  by  particular  individuals,  he 
offers  what  is  called  hearsay  evidence.  This  evidence  may 
sometimes  be  the  very  matter  in  dispute,"  &c.  (1  Ph.  Ev. 
143).  If  this  definition  is  correct,  the  maxim,"  Hearsay 
is  no  evidence,"  can  only  be  saved  from  the  charge  of  false- 
hood by  exceptions  which  make  nonsense  of  it.  By  attach- 
ing to  it  the  meaning  given  in  the  text  it  becomes  both 
intelligible  and  true.  There  is  no  real  difference  between 
the  fact  that  a  man  was  heard  to  say  this  or  that,  and  any 
other  fact.  Words  spoken  may  convey  a  threat,  supply  the 
motive  for  a  crime,  constitute  a  contract,  amount  to  slander, 
&c,  &c. ;  and  if  relevant  or  in  issue,  on  these  or  other 
grounds,  they  must  be  proved,  like  other  facts,  by  the  oath 
of  some  one  who  heard  them.  The  important  point  to  re- 
member about  them  is  that  bare  assertion  must  not,  gener^ 
ally  speaking,  be  regarded  as  relevant  to  the  truth  of  the 
matter  asserted. 

The  doctrine  of  hearsay  evidence  was  fully  discussed  by 
many  of  the  judges  in  the  case  of  Doe  d.  Wright  v.  Tatham, 
1837,  on  the  different  occasions  when  that  case  came  be- 
fore the  Court  (see  7  A.  &  E.  313-408;  4  Bing.  K  C. 
489-573).  The  question  was  whether  letters  addressed  to 
a  deceased  testator,  implying  that  the  writers  thought  him 
sane,  but  not  acted  upon  by  him,  could  be  regarded  as 
relevant  to  his  sanity,  which  was  the  point  in  issue.  The 
case  sets  the  stringency  of  the  rule  against  hearsay  in  a  light 
which  is  forcibly  illustrated  by  a  passage  in  the  judgment 


THE  LAW  OF  EVIDENCE.  067 

of  Baron  Parke  (7  A.  &  E.  385-8),  to  the  following  effect : 
—  He  treats  the  letters  as  "  statements  of  the  writers, 
not  on  oath,  of  the  truth  of  the  matter  in  question,  with 
this  in  addition,  that  they  had  acted  upon  the  statements 
on  the  faith  of  their  being  true  by  their  sending  the 
letters  to  the  testator."  He  then  goes  through  a  variety 
of  illustrations  which  had  been  suggested  in  argument, 
and  shows  that  in  no  case  ought  such  statements  to  be 
regarded  as  relevant  to  the  truth  of  the  matter  stated,  even 
when  the  circumstances  were  such  as  to  give  the  strongest 
possible  guarantee  that  such  statements  expressed  the 
honest  opinions  of  the  persons  who  made  them.  Amongst 
others  he  mentions  the  following :  —  "  The  conduct  of  the 
family  or  relations  of  a  testator  taking  the  same  precautions 
in  his  absence  as  if  he  were  a  lunatic  —  his  election  in  his 
absence  to  some  high  and  responsible  office ;  the  conduct 
of  a  physician  who  permitted  a  will  to  be  executed  by  a  sick 
testator ;  the  conduct  of  a  deceased  captain  on  a  question 
of  seaworthiness,  who,  after  examining  every  part  of  a 
vessel,  embarked  in  it  with  his  family;  all  these,  when 
deliberately  considered,  are,  with  reference  to  the  matter  in 
issue  in  each  case,  mere  instances  of  hearsay  evidence  — 
mere  statements,  not  on  oath,  but  applied  in  or  vouched 
by  the  actual  conduct  of  persons  by  whose  acts  the 
litigant  parties  are  not  to  be  bound."  All  these  matters 
are  therefore  to  be  treated  as  irrelevant  to  the  questions 
at  issue. 

These  observations  make  the  rule  quite  distinct,  but  the 
reason  suggested  for  it  in  the  concluding  words  of  the 
passage  extracted  appears  to  be  weak.     That  passage  im- 


668  A  DIGEST  OF 


plies  that  hearsay  is  excluded  because  no  one  "  ought  to  be 
bound  by  the  act  of  a  stranger."  That  no  one  shall  have 
power  to  make  a  contract  for  another  or  commit  a  crime 
for  which  that  other  is  to  be  responsible  without  his  au- 
thority is  obviously  reasonable,  but  it  is  not  so  plain  why 
A's  conduct  should  not  furnish  good  grounds  for  inference 
as  to  B's  conduct,  though  it  was  not  authorised  by  B.  The 
importance  of  shortening  proceedings,  the  importance  of 
compelling  people  to  procure  the  best  evidence  they  can, 
and  the  importance  of  excluding  opportunities  of  fraud,  are 
considerations  which  probably  justify  the  rule  excluding 
hearsay;  but  Baron  Parke's  illustrations  of  its  operation 
clearly  prove  that  in  some  cases  it  excludes  the  proof  of 
matter  which,  but  for  it,  would  be  regarded  not  only  as 
relevant  to  particular  facts,  but  as  good  grounds  for  be- 
lieving in  their  existence. 

NOTE  IX. 

(To  Article  15. —  Admissions  defined.) 

This  definition  is  intended  to  exclude  admissions  by 
pleading,  admissions  which,  if  so  pleaded,  amount  to  es- 
toppels, and  admissions  made  for  the  purposes  of  a  cause 
by  the  parties  or  their  solicitors.  These  subjects  are  usu- 
ally treated  of  by  writers  on  evidence ;  but  they  appear  to 
me  to  belong  to  other  departments  of  the  law.  The  subject, 
including  the  matter  which  I  omit,  is  treated  at  length  in 
1  Ph.  Ev.  308-401;  Taylor,  ss.  723-861;  and  Phipson, 
205-235.  A  vast  variety  of  cases  upon  admissions  of 
every  sort  may  be  found  by  referring  to  Roscoe.  X.  P.  (In- 


THE  LAW  OF  EVIDENCE.  GG9 

dex,  under  the  word  Admissions.)  It  may  perhaps  be 
well  to  observe  that  when  an  admission  is  contained  in  a 
document,  or  series  of  documents,  or  when  it  forms  part  of 
a  discourse  or  conversation,  so  much  and  no  more  of  the 
document,  series  of  documents,  discourse  or  conversation, 
must  be  proved  as  is  necessary  for  the  full  understanding 
of  the  admission,  but  the  judge  or  jury  may  of  course  attach 
degrees  of  credit  to  different  parts  of  the  matter  proved. 
This  rule  is  elaborately  discussed  and  illustrated  by  Mr. 
Taylor,  ss.  725-3S.  It  has  lost  much  of  the  importance 
which  attached  to  it  when  parties  to  actions  could  not  bo 
witnesses,  but  could  be  compelled  to  make  admissions  by 
hills  of  discovery.  The  ingenuity  of  equity  draughtsmen 
was  under  that  system  greatly  exercised  in  drawing  an- 
swers in  such  a  form  tl  at  it  was  impossible  to  read  part  of 
them  without  reading  the  whole,  and  the  ingenuity  of  the 
Court  was  at  least  as  much  exercised  in  countermining  their 
ingenious  devices.  The  power  of  administering  interroga- 
tories, and  of  examining  the  parties  directly,  has  made 
great  changes  in  these  matters. 

NOTE  X. 
(To  Article  16. —  Admissions,  by  whom  made.) 

As  to  admissions  by  parties,  see  Moriarty  v.  L.  C.  &  D. 
Railway,  1870,  L.  R.  5  Q.  B.  320,  per  Blackburn,  J.; 
Alner  v.  George,  1808,  1  Camp.  302;  Bauerman  v.  Rade- 
nius,  1798,  7  T.  R.  663. 

As  to  admissions  by  parties  interested,  see  Spargo  v. 
Brown,  1829,  9  B.  &  C.  935. 


670  A  DIGEUT  OF 


See  also  on  the  subject  of  this  article,  1  Ph.  Ev.  362-3, 
369,  398;  Taylor,  ss.  740-3,  755-7,  794;  Koscoe,  N.  P. 
67  ;  and  Phipson,  215-35. 

As  to  admissions  by  privies,  see  1  Ph.  Ev.  394-7,  and 
Taylor  (from  Greenleaf),  s.  787. 

NOTE  XL 

(To  Article  17. —  Admissions  by  Agents.) 

The  subject  of  the  relevancy  of  admissions  by  agents 
is  rendered  difficult  by  the  vast  variety  of  forms  which 
agency  assumes,  and  by  the  distinction  oetween  an  agent 
for  the  purpose  of  making  a  statement  and  an  agent  for  the 
purpose  of  transacting  business.  If  A  sends  a  message  by 
B,  B's  words  in  delivering  it  are  in  effect  A's;  but  B's 
statements  in  relation  to  the  subject-matter  of  the  message 
have,  as  ouch,  no  special  value.  A's  own  statements  are 
valuable  if  they  suggest  an  inference  which  he  afterwards 
contests  because  they  are  against  his  interest ;  but  when  the 
agent's  duty  is  done,  he  has  no  special  interest  in  the 
matter. 

The  principle  as  to  admissions  by  agents  is  stated  and 
explained  by  Sir  W.  Grant  in  Fairlie  v.  Hastings,  1804,  10 
Ve.  126-7. 

NOTE  XII. 

(To  Article  18. —  Admissions  by  Strangers.) 

See,  for  a  third  exception  (which  could  hardly  occur 
now),  Clay  v.  Langslow,  1827,  M.  &  M.  45. 


THE  LAW  OF  EVIDENCE.  671 

NOTE  XIII. 

(To  Article  19. —  Admissions  by  Party  referred  to.) 

This  comes  very  near  to  the  case  of  arbitration.  See, 
as  to  irregular  arbitrations  of  this  kind,  1  Ph.  Ev.  383 ; 
Taylor,  ss.  760-3 ;  Phipson,  233-4. 

NOTE  XIV. 

(To  Article  20. —  Admissions  without  Prejudice.) 

See  more  on  this  subject  in  1  Ph.  Ev.  326-8;  Taylor, 
ss.  774,  795 ;  K.  K  P.  62-3 ;  Phipson,  207-8. 

NOTE  XV. 

(To  Article  22. —  Confessions  under  Threat.) 

On  the  law  as  to  Confessions,  see  1  Ph.  Ev.  401-423 ; 
Taylor,  ss.  872-84,  and  s.  902;  Best,  ss.  551-74;  Roscoe, 
Cr.  Ev.  34-49;  3  Kuss.  on  Crimes,  by  Greaves,  477-537; 
Phipson,  244-55.  Joy  on  Confessions  reduces  the  law  on 
the  subject  to  the  shape  of  13  propositions,  the  effect  of  all 
of  which  is  given  in  the  text  in  a  different  form. 

Many  cases  have  been  decided  as  to  the  language  which 
amounts  to  an  inducement  to  confess  (see  Eoscoe,  Or. 
Ev.  35-38 ;  and  Phipson,  250-3,  where  most  of  them  are 
collected).  They  are,  however,  for  practical  purposes, 
summed  up  in  R.  v.  Baldry,  1852,  2  Den.  430,  which  is 
the  authority  for  the  last  lines  of  the  first  paragraph  of  this 
artiole. 


072  A  DIGEST  OF 


NOTE  XVI. 

(To  Article  23. —  Confessions  on  Oath.) 

Cases  are  sometimes  cited  to  show  that  if  a  person  is 
examined  as  a  witness  on  oath,  his  deposition  cannot  be 
used  in  evidence  against  him  afterwards  (see  Taylor,  ss. 
886  and  895,  n.  5;  also  3  Euss.  on  Cri.  511,  &c).  All 
these  cases,  however,  relate  to  the  examinations  before 
magistrates  of  persons  accused  of  crimes,  under  the  statutes 
which  were  in  force  before  11  &  12  Vict.  c.  42,  and  which, 
like  that  statute,  authorised  statements  by  prisoners,  but 
not  their  examination  on  oath. 

Since  the  decisions  in  R.  v.  Scott,  1856,  1  D.  &  B.  47; 
25  L.  J.,  M.  C.  128,  and  R.  v.  Erdheim  [1896],  2  Q.  B. 
260,  decided  on  the  Bankruptcy  Acts  of  1849  and  1883,  it 
seems  that  these  cases  must  be  considered  obsolete ;  see  par- 
ticularly the  judgment  of  Russell,  L.C.  J.,  in  the  latter  case, 
at  pp.  267-8.  The  point  is  of  considerable  importance 
since  the  passing  of  the  Criminal  Evidence  Act,  1898. 

NOTE  XVII. 

(To  Article  26. —  Dying  Declakations.) 

As  to  dying  declarations,  see  1  Ph.  Ev.  239-52 ;  Taylor, 
ss.  714-22 ;  Best,  s.  505 ;  Starkie,  32  &  38 ;  3  Buss.  Cri. 
388-97;  Roscoe,  Crim.  Ev.  27-33;  Phipson,  298-303; 
R.  v.  Baker,  2  Mo.  &  Ro.,  1837,  53,  is  a  curious  case  on 
this  subject.  A  and  B  were  both  poisoned  by  eating  the 
same  cake.     C  was  tried  for  poisoning  A.     B's  dying  de- 


THE  LAW  OF  EVIDENCE.  673 

claration  that  she  made  the  cake  in  C's  presence,  and  put 
nothing  bad  in  it,  was  admitted  as  against  C,  on  the  ground 
that  the  whole  formed  one  transaction. 

NOTE  XVIII. 

(To   Article   27. —  Declarations  in   Course   of 

Business.) 

1  Ph.  Ev.  280-300 ;  Taylor,  ss.  714-22 ;  Best,  501 ;  R. 
N.  P.  60-2 ;  Phipson,  268-75 ;  and  see  note  to  Price  v. 
Lord  Torrington,  1704,  2  S.  L.  C.  310.  The  last  case  on 
the  subject  is  Massey  v.  Allen,  1879,  13  Ch.  Div.  558. 

NOTE  XIX. 
(To  Article  28. —  Declarations  against  Interest.) 

The  best  statement  of  the  law  upon  this  subject  will  be 
found  in  Higham  v.  Ridgway,  and  the  note  thereto,  2  S.  L. 
C.  317-8.  See  also  1  Ph.  Ev.  253-80;  Taylor,  ss.  668- 
96a;  Best,  s.  500;  R  N.  P.  55-59;  Phipson,  258-67. 

A  class  of  cases  exists  which  I  have  not  put  into  the  form 
of  an  article,  partly  because  their  occurrence  since  the 
commutation  of  tithes  must  be  very  rare,  and  partly  because 
I  find  a  great  difficulty  in  understanding  the  place  which 
the  rule  established  by  them  ought  to  occupy  in  a  systematic 
statement  of  the  law.  They  are  cases  which  lay  down  the 
rule  that  statements  as  to  the  receipts  of  tithes  and  moduses 
made  by  deceased  rectors  and  other  ecclesiastical  corpora- 
tions sole  are  admissible  in  favour  of  their  successors. 
43 


C74  A  DIGEST  OF 


There  is  no  doubt  as  to  the  rule  (see,  in  particular,  Short 
v.  Lee,  1821,  2  Jac.  &  Wal.  464;  and  Young  v.  Clare  Hall, 
1851,  17  Q.  B.  529).  The  difficulty  is  to  see  why  it  was 
ever  regarded  as  an  exception.  It  falls  directly  within  the 
principle  stated  in  the  text,  and  would  appear  to  be  an  obvi- 
ous illustration  of  it ;  but  in  many  cases  it  has  been  declared 
to  be  anomalous,  inasmuch  as  it  enables  a  predecessor  in 
title  to  mak^  evidence  in  favour  of  his  successor.  This  sug- 
gests that  Article  28  ought  to  be  limited  by  a  proviso  that  a 
declaration  against  interest  is  not  relevant  if  it  was  made 
by  a  predecessor  in  title  of  the  person  who  seeks  to  prove 
it,  unless  it  is  a  declaration  by  an  ecclesiastical  corporation 
sole,  or  a  member  of  an  ecclesiastical  corporation  aggregate 
(see  Short  v.  Lee),  as  to  the  receipt  of  a  tithe  or  modus. 

Some  countenance  for  such  a  proviso  may  be  found  in 
the  terms  in  which  Bayley,  J.,  states  the  rule  in  Gleadow  v. 
Atkin  (ante,  p.  107),  and  in  the  circumstance  that  when 
it  first  obtained  currency  the  parties  to  an  action  were  not 
competent  witnesses.  But  the  rule  as  to  the  indorsement 
of  notes,  bonds,  &c,  is  distinctly  opposed  to  such  a  view. 

NOTE  XX. 

(To  Article  30. —  Declarations  as  to  Public  and 
General  Rights.) 

Upon  this  subject,  besides  the  authorities  in  the  text,  see 
1  Ph.  Ev.  169-97;  Taylor,  ss.  607-34;  Best,  s.  497;  R. 
K  P.  48-51 ;  Phipson,  276-87. 

A  great  number  of  cases  have  been  decided  as  to  the  par- 
ticular documents,  &c,  which  fall  within  the  rule  given  in 


THE  LAW  OF  EVIDENCE.  675 

the  text.  They  are  collected  in  the  works  referred  to  above, 
but  they  appear  to  me  merely  to  illustrate  one  or  other  of 
the  branches  of  the  rule,  and  not  to  extend  or  vary  it.  An 
award,  e.g.,  is  not  within  the  last  branch  of  illustration  (6), 
because  it  "  is  but  the  opinion  of  the  arbitrator,  not  upon 
his  own  knowledge  "  (Evans  v.  Bees,  1839,  10  A.  &  E. 
155)  ;  but  the  detailed  application  of  such  a  rule  as  this  is 
better  learnt  by  experience,  applied  to  a  firm  grasp  of  prin- 
ciple, than  by  an  attempt  to  recollect  innumerable  cases. 

The  case  of  Weeks  v.  Sparke  (ante,  p.  113)  is  remarkable 
for  the  light  it  throws  on  the  history  of  the  Law  of  Evidence. 
It  was  decided  in  1813,  and  contains  inter  alia  the  follow- 
ing curious  remarks  by  Lord  Ellenborough :  "  It  is  stated 
to  be  the  habit  and  practice  of  different  circuits  to  admit 
this  species  of  evidence  upon  such  a  question  as  the  present. 
That  certainly  cannot  make  the  law,  but  it  shows  at  least, 
from  the  established  practice  of  a  large  branch  of  the  pro- 
fession, and  of  the  judges  who  have  presided  at  various 
times  on  those  circuits,  what  has  been  the  prevailing  opin- 
ion upon  this  subject  amongst  so  large  a  class  of  persons 
interested  in  the  due  administration  of  the  law.  It  is 
stated  to  have  been  the  practice  both  of  the  Xorthern  and 
Western  Circuits.  My  learned  predecessor,  Lord  Kenyon, 
certainly  held  a  different  opinion,  the  practice  of  the  Ox- 
ford Circuit,  of  which  he  was  a  member,  being  different." 
So  in  the  Berkeley  Peerage  Case,  1811,  Lord  Eldon  said, 
"  When  it  was  proposed  to  read  this  deposition  as  a  declara- 
tion, the  Attorney-General  (Sir  Vicary  Gibbs)  flatly  ob- 
jected to  it.    He  spoke  quite  right  as  a  Western  Circuiteer, 


676  A  DIGEST  OF 


of  what  he  had  often  heard  laid  down  in  the  West,  and 
never  heard  doubted  "  (4  Cam.  20).  This  shows  how  very 
modern  much  of  the  Law  of  Evidence  is.  Le  Blanc,  J.,  in 
Weeks  v.  Sparke,  says,  that  a  foundation  must  be  laid  for 
evidence  of  this  sort  "  by  acts  of  enjoyment  within  living 
memory."  This  seems  superfluous,  as  no  jury  would  ever 
find  that  a  public  right  of  way  existed,  which  had  not  been 
used  in  living  memory,  on  the  strength  of  a  report  that  some 
deceased  person  had  said  that  there  once  was  such  a  right. 

NOTE  XXI. 
(To  Article  31. —  Declarations  as  to  Pedigree.) 

See  1  Ph.  Ev.  197-233;  Taylor,  ss.  635-57;  R.  N.  P. 
46-48 ;  Phipson,  288-297. 

The  Berkeley  Peerage  Case,  1811  (Answers  of  the 
Judges  to  the  House  of  Lords),  4  Cam.  401,  which  estab- 
lished the  third  condition  given  in  the  text ;  and  Davies  v. 
Lowndes,  1843,  6  M.  &  G.  471  (see  more  particularly  pp. 
525-9,  in  which  the  question  of  family  pedigrees  is  fully 
discussed)  are  specially  important  on  this  subject. 

As  to  declarations  as  to  the  place  of  birth,  &c,  see 
Shields  v.  Boucher,  1847,  1  De  G.  &  S.  49-58. 

NOTE  XXII. 

(To  Article  32. —  Evidence  in  Former  Proceedings.) 

See  also  1  Ph.  Ev.  306-8;  Taylor,  ss.  464-79a;  Buller, 
N.  P.  238,  and  following;  Phipson,  419-25. 


THE  LAW  OF  EVIDENCE.  677 

In  reference  to  this  subject  it  has  been  asked  whether 
this  principle  applies  indiscriminately  to  all  kinds  of  evi- 
dence in  all  cases.  Suppose  a  man  were  to  be  tried  twice 
upon  the  same  facts — e.  g.  for  robbery  after  an  acquittal 
for  murder,  and  suppose  that  in  the  interval  between  the 
two  trials  an  important  witness  who  had  not  been  called 
before  the  magistrates  were  to  die,  might  his  evidence  be 
read  on  the  second  trial  from  a  reporter's  short-hand 
notes?  This  case  might  easily  have  occurred  if  Orton  had 
been  put  on  his  trial  for  forgery  as  well  as  for  perjury. 
I  should  be  disposed  to  think  on  principle  that  such  evi- 
dence would  be  admissible,  though  I  cannot  cite  any 
authority  on  the  subject.  The  common-law  principle  on 
which  depositions  taken  before  magistrates  and  in  Chan- 
cery proceedings  were  admitted  seems  to  cover  the  case. 

NOTE  XXIII. 

(To  Articles  39-47. — Judgments  as  Evidence.) 

The  law  relating  to  the  relevancy  of  judgments  of  Courts 
of  Justice  to  the  existence  of  the  matters  which  they  assert 
is  made  to  appear  extremely  complicated  by  the  manner 
in  which  it  is  usually  dealt  with.  The  method  commonly 
employed  is  to  mix  up  the  question  of  the  effect  of  judg- 
ments of  various  kinds  with  that  of  their  admissibility, 
subjects  which  appear  to  belong  to  different  branches  of 
the  law. 

Thus  the  subject,  as  commonly  treated,  introduces  into 
the  Law  of  Evidence  an  attempt  to  distinguish  between 
judgments  in  rem,  and  judgments  in  personam  or  inter 


678  A  DIGEST  OF 


partes  (terms  adapted  from,  but  not  belonging  to,  Roman 
Law,  and  never  clearly  defined  in  reference  to  our  own  or 
any  other  system)  ;  also  the  question  of  the  effect  of  the 
pleas  of  autrefois  acquit,  and  autrefois  convict,  which 
clearly  belong  not  to  evidence,  but  to  criminal  procedure ; 
the  question  of  estoppels,  which  belongs  rather  to  the  law 
of  pleading  than  to  that  of  evidence;  and  the  question  of 
the  effect  given  to  the  judgments  of  foreign  Courts  of  Jus- 
tice, which  would  seem  more  properly  to  belong  to  private 
international  law.  These  and  other  matters  are  treated 
uf  at  great  length  in  2  Ph.  Ev.  1-78,  and  Taylor,  ss.  1667- 
1723  ;  in  the  note  to  the  Duchess  of  Kingston  s  Case,  1776, 
2  S.  L.  C.  726-840;  and  Phipson,  379-412.  Best  (ss.  588- 
595)  treats  the  matter  more  concisely. 

The  text  is  confined  to  as  complete  a  statement  as  I 
could  make  of  the  principles  which  regulate  the  relevancy 
of  judgments  considered  as  declarations  proving  the  facts 
which  they  assert,  whatever  may  be  the  effect  or  the  use  to 
be  made  of  those  facts  when  proved.  Thus  the  leading 
principle  stated  in  Article  40  is  equally  true  of  all  judg- 
ments alike.  Every  judgment,  whether  it  be  in  rem  or 
inter  partes,  must  and  does  prove  what  it  actually  effects, 
though  the  effects  of  different  sorts  of  judgments  differ  as 
widely  as  the  effects  of  different  sorts  of  deeds. 

There  has  been  much  controversy  as  to  the  extent  to 
which  effect  ought  to  be  given  to  the  judgments  of  foreign 
Courts  in  this  country,  and  as  to  the  cases  in  which  the 
Courts  will  refuse  to  act  upon  them  ;  but  as  a  mere  question 
of  evidence,  they  do  not  differ  from  English  judgments. 


THE  LAW  OF  EVIDENCE.  G79 

The  cases  on  foreign  judgments  are  collected  in  the  note  to 
the  Duchess  of  Kingston's  Case,  2  S.  L.  C.  765-801.  There 
is  a  convenient  list  of  the  cases  in  R,  1ST.  P.  205-0.  The 
cases  of  Godard  v.  Gray,  1870,  L.  R.  6  Q.  B.  139;  Cas- 
trique  v.  Imrie,  1870,  L.  R.  4  E.  &  I.  A.  414 ;  &?A  Noewion 
v.  Freeman,  [1889],  15  A.  C.  1,  are  the  latest  leading 
cases  on  the  subject. 

NOTE  XXIV. 
(To  Chapter  V. —  Opinions,  when  Relevant.) 

On  evidence  of  opinions,  see  1  Ph.  Ev.  520-8 ;  Taylor, 
ss.  1416-1425;  Best,  ss.  511-17;  R.  K  P.  174-5;  Phipson, 
356-78.  The  leading  case  on  the  subject  is  Doe  r.  Tatham, 
1837,  7  A.  &  E.  313 ;  and  4  Bing.  K  C.  489,  referred  to 
above  in  Note  VIII.  Baron  Parke,  in  the  extracts  there 
given,  treats  an  expression  of  opinion  as  hearsay,  that  is. 
as  a  statement  affirming  the  truth  of  the  subject-matter  of 
the  opinion. 

NOTE  XXV. 

(To  Chapter  VI. —  Character,  when  Relevant.) 

See  1  Ph.  Ev.  502-8;  Taylor,  ss.  349-63;  Best,  ss.  257- 
63;  3  Russ.  Cr.  424-8;  Phipson,  154-8.  The  subject  is 
considered  at  length  in  B.  v.  Rowton,  1865,  1  L.  &  C.  520. 
One  consequence  of  the  view  of  the  subject  taken  in  that 
case  is  that  a  witness  may  with  perfect  truth  swear  that 
a  man,  who  to  his  knowledge  has  been  a  receiver  of  stolen 
goods  for  years,  has  an  excellent  character  for  honesty, 
if  he  has  had  the  good  luck  to  conceal  his  crimes  from  his 


680  A  DIGEST  OF 


neighbours.  It  is  the  essence  of  successful  hypocrisy  to 
combine  a  good  reputation  with  a  bad  disposition,  and  ac- 
cording to  R.  v.  Rowton,  the  reputation  is  the  important 
matter.  The  case  is  seldom  if  ever  acted  on  in  practice. 
The  question  always  put  to  a  witness  to  character  is,  What 
is  the  prisoner's  character  for  honesty,  morality,  or  human- 
ity ?  as  the  case  may  be ;  nor  is  the  witness  ever  warned 
that  he  is  to  confine  his  evidence  to  the  prisoner's  reputa- 
tion. It  would  be  no  easy  matter  to  make  the  common  run 
of  witnesses  understand  the  distinction. 

NOTE  XXVI. 

(To  Article  58. —  Judicial  Notice.) 

The  list  of  matters  judicially  noticed  in  this  article  i& 
not  intended  to  be  quite  complete.  It  is  compiled  from  1 
Ph.  Ev.  458-67,  and  Taylor,  ss.  4-21,  where  the  subject  is 
gone  into  more  minutely.  A  convenient  list  is  also  given 
in  K.  1ST.  P.  80-84,  which  is  much  to  the  same  effect;  see, 
too,  Phipson,  16-24.  It  may  be  doubted  whether  ap 
absolutely  complete  list  could  be  formed,  as  it  is  prac 
tically  impossible  to  enumerate  everything  which  is  so 
notorious  in  itself,  or  so  distinctly  recorded  by  public  au- 
thority, that  it  would  be  superfluous  to  prove  it.  Para- 
graph (1)  is  drawn  with  reference  to  the  fusion  of  Law, 
Equity,  Admiralty,  and  Testamentary  Jurisdiction  ef- 
fected by  the  Judicature  Act. 


THE  LAW  OF  EVIDENCE.  681 

NOTE  XXVII. 

(To  Article  62. —  Oral  Evidence  must  be  Direct.) 

Owing  to  the  ambiguity  of  the  word  "  evidence,"  which 
is  sometimes  used  to  signify  the  effect  of  a  fact  when 
proved,  and  sometimes  to  signify  the  testimony  by  which 
a  fact  is  proved,  the  expression  "  hearsay  is  no  evidence  " 
has  many  meanings.  Its  common  and  most  important 
meaning  is  the  one  given  in  Article  14,  which  might  be 
otherwise  expressed  by  saying  that  the  connection  between 
events,  and  reports  that  they  have  happened,  is  generally 
so  remote  that  it  is  expedient  to  regard  the  existence  of  the 
reports  as  irrelevant  to  the  occurrence  of  the  events,  except 
in  excepted  cases.  Article  62  expresses  the  same  thing 
from  a  different  point  of  view,  and  is  subject  to  no  excep- 
tions whatever.  It  asserts  that  whatever  may  be  the  rela- 
tion of  a  fact  to  be  proved  to  the  fact  in  issue,  it  must,  if 
proved  by  oral  evidence,  be  proved  by  direct  evidence.  For 
instance,  if  it  were  to  be  proved  under  Article  31  that  A, 
who  died  fifty  years  ago,  said  that  he  had  heard  from  his 
father  B,  who  died  100  years  ago,  that  A's  grandfather  C 
had  told  B  that  D,  C's  elder  brother,  died  without  issue, 
A's  statement  must  be  proved  by  some  one  who,  with  his 
own  ears,  heard  him  make  it.  If  (as  in  the  case  of  verbal 
slander)  the  speaking  of  the  words  was  the  very  point  in 
issue,  they  must  be  proved  in  precisely  the  same  way. 
Cases  in  which  evidence  is  given  of  character  and  general 
opinion  may  perhaps  seem  to  be  exceptions  to  this  rule, 


682  A  DIGEST  OF 


but  they  are  not  so.  When  a  man  swears  that  another  has 
a  good  character,  he  means  that  he  has  heard  many  people, 
though  he  does  not  particularly  recollect  what  people,  speak 
well  of  him,  though  he  does  not  recollect  all  that  they  said. 

NOTE  XXVIII. 

(To  Articles  66  &  67. —  Proof  of  Execution  of  Docu- 
ment MUST  BE  ATTESTED.) 

This  is  probably  the  most  ancient,  and  is,  as  far  as  it 
extends,  the  most  inflexible  of  all  the  rules  of  evidence. 
The  following  characteristic  observations  by  Lord  Ellen- 
borough  occur  in  R.  v.  Har  ring  worth,  1815,  4  M.  &  S.  at 
p.  353:— 

"  The  rule,  therefore,  is  universal  that  you  must  first 
call  the  subscribing  witness ;  and  it  is  not  to  be  varied  in 
each  particular  case  by  trying  whether,  in  its  application, 
it  may  not  be  productive  of  some  inconvenience,  for  then 
there  would  be  no  such  thing  as  a  general  rule.  A  lawyer 
who  is  well  stored  with  these  rules  would  he  no  better  than 
any  other  man  that  is  without  them,  if  by  mere  force  of 
speculative  reasoning  it  might  be  shown  that  the  applica- 
tion of  such  and  such  a  rule  would  be  productive  of  such 
and  such  an  inconvenience,  and  therefore  ought  not  to 
prevail;  but  if  any  general  rule  ought  to  prevail,  this  is 
certainly  one  that  is  as  fixed,  formal,  and  universal  as  any 
that  can  be  stated  in  a  Court  of  Justice." 

In  AYhyman  v.  Garth,  1853,  8  Ex.  at  p.  807,  Pollock, 
C.B.,  said,  "  The  parties  are  supposed  to  have  agreed  inter 


TEE  LAW  OF  EVIDENCE.  683 

se  that  the  deed  shall  not  be  given  in  evidence  without  hi3 
[the  attesting  witness]  being  called  to  depose  to  the  circum- 
stances attending  its  execution." 

In  very  ancient  times,  when  the  jury  were  witnesses  a8 
to  matter  of  fact,  the  attesting  witnesses  to  deed  (if  a  deed 
came  in  question)  would  seem  to  have  been  summoned  with, 
and  to  have  acted  as  a  sort  of  assessors  to,  the  jury.  See 
as  to  this,  Bracton,  fo.  38a;  Fortescue,  De  Laudibus,  ch. 
xxxii.  with  Selden's  note ;  and  cases  collected  from  the 
Year-books  in  Brooke's  Abridgement,  tit.  Testmoignes. 

For  the  present  rule,  and  the  exceptions  to  it,  see  2  Ph. 
Ev.  242-61 ;  Taylor,  ss.  1839-1844;  K.  K  P.  131-34;  Best, 
ss.  220,  &c. ;  Phipson,  490-95. 

The  old  rule  which  applied  to  all  attested  documents  was 
restricted  to  those  required  to  be  attested  by  law,  by  17  & 
18  Vict.  c.  125,  s.  26,  replaced  by  28  &  29  Vict.  c.  18,  ss.  1 
&  7,  and  now  repealed  by  S.  L.  R.  Act,  1892. 

NOTE  XXIX. 

(To  Article  72. —  Notice  to  produce.) 

For  these  rules  in  greater  detail,  see  1  Ph.  Ev.  452-3, 
and  2  Ph.  Ev.  272-89;  Taylor,  ss.  449-56;  R.  X.  P.  7-M ; 
Phipson,  507-8. 

The  principle  of  all  the  rules  is  fully  explained  in  the 
cases  cited  in  the  foot-notes,  more  particularly  in  Dwyer 
v.  Collins,  1852,  7  Ex.  639.  In  that  case  it  is  held  that 
the  object  of  notice  to  produce  is  "  to  enable  the  parry  to 
have  the  document  in  Court,  and  if  he  does  not,  to  enable 


684  A  DIGEST  OF 


his  opponent  to  give  parol  evidence ...  to  exclude  the  argu- 
ment that  the  opponent  has  not  taken  all  reasonable  means 
to  procure  the  original,  which  he  must  do  before  he  can  be 
permitted  to  make  use  of  secondary  evidence  "  (pp.  647-8). 

NOTE  XXX. 

(To    Article    75. —  Public    Documents;    Examined 

Copies.) 

Mr.  Philips  (2,  196)  says,  that  upon  a  plea  of  mil  tiel 
record,  the  original  record  must  be  produced  if  it  is  in  the 
same  Court. 

Mr.  Taylor  (s.  1535)  says,  that  upon  prosecutions  for 
perjury  assigned  upon  any  judicial  document  the  original 
must  be  produced.  The  authorities  given  seem  to  me 
hardly  to  bear  out  either  of  these  statements.  They  show 
that  the  production  of  the  original  in  such  cases  is  the  usual 
course,  but  not,  I  think,  that  it  is  necessary.  The  case  of 
Lady  Dartmouth  v.  Roberts,  1812,  16  Ea.  334,  is  too  wide 
for  the  proposition  for  which  it  is  cited.  The  matter,  how- 
ever, is  of  little  practical  importance. 

NOTE  XXXI. 

(To  Articles  77  &  78. —  Public  Documents;  Exem- 
plifications.) 

The  learning  as  to  exemplifications  and  office-copies  will 
be  found  in  the  following  authorities :  Gilbert's  '  Law  of 
Evidence,'  11-20;  Buller,  'Nisi  Prius,'  228,  and  follow- 
ing; Starkie,  256-66  (fully  and  very  conveniently)  ;  2  Ph. 


THE  LAW  OF  EVIDENCE.  685 

Ev.  196-200;  Taylor,  ss.  1536-1542;  R.  K  P.  96-102. 
The  second  paragraph  of  Article  77  is  founded  on  Appleton 
v.  Braybroolc,  1817,  6  M.  &  S.  at  p.  39. 

As  to  exemplifications  not  under  the  Great  Seal,  it  is 
remarkable  that  the  Judicature  Acts  give  no  seal  to  the 
Supreme  Court,  or  the  High  Court,  or  any  of  its  divisions. 

NOTE  XXXII. 

{To  Article  90. —  Documents  Exclusive  Evidence.) 

The  distinction  between  this  and  the  following  article  is, 
that  Article  90  defines  the  cases  in  which  documents  are 
exclusive  evidence  of  the  transactions  which  they  embody, 
while  Article  91  deals  with  the  interpretation  of  documents 
by  oral  evidence.  The  two  subjects  are  so  closely  con- 
nected together,  that  they  are  not  usually  treated  as  dis- 
tinct; but  they  are  so  in  fact.  A  and  B  make  a  contract  of 
marine  insurance  on  goods,  and  reduce  it  to  writing.  They 
verbally  agree  that  the  goods  are  not  to  be  shipped  in  a 
particular  ship,  though  the  contract  makes  no  such  reser- 
vation. They  leave  unnoticed  a  condition  usually  under- 
stood in  the  business  of  insurance,  and  they  make  use  of  a 
technical  expression,  the  meaning  of  which  is  not  com- 
monly known.  The  law  does  not  permit  oral  evidence  to 
be  given  of  the  exception  as  to  .the  particular  ship.  It  does 
permit  oral  evidence  to  be  given  to  annex  the  condition; 
and  thus  far  it  decides  that  for  one  purpose  the  document 
shall,  and  that  for  another  it.  shall  not,  be  regarded  as 
exclusive  evidence  of  the  terms  of  the  actual  agreement 


686  A  DIGEST  OF 


between  the  parties.  It  also  allows  the  technical  term  to  be 
explained,  and  in  doing  so  it  interprets  the  meaning  of 
the  document  itself.  The  two  operations  are  obviously 
different,  and  their  proper  performance  depends  upon  dif- 
ferent principles.  The  first  depends  upon  the  principle 
that  the  object  of  reducing  transactions  to  a  written  form 
is  to  take  security  against  bad  faith  or  bad  memory,  for 
which  reason  a  writing  is  presumed  as  a  general  rule  to 
embody  the  final  and  considered  determination  of  the  par-  ' 
ties  to  it.  The  second  depends  on  a  consideration  of  the 
imperfections  of  language,  and  of  the  inadequate  manner 
in  which  people  adjust  their  words  to  the  facts  to  which 
they  apply. 

The  rules  themselves  are  not,  I  think,  difficult  either  to 
state,  to  understand,  or  to  remember ;  but  they  are  by  no 
means  easy  to  apply,  inasmuch  as  from  the  nature  of  the 
case  an  enormous  number  of  transactions  fall  close  on  one 
side  or  the  other  of  most  of  them.  Hence  the  exposition  of 
these  rules,  and  the  abridgment  of  all  the  illustrations  of 
them  which  have  occurred  in  practice,  occupy  a  very  large 
space  in  the  different  text  writers.  They  will  be  found  in 
2  Ph.  Ev.  332-424;  Taylor,  ss.  1128-1228;  Star.  648-731; 
Best  (very  shortly  and  imperfectly),  ss.  226-9;  R.  1ST.  P. 
(an  immense  list  of  cases),  16-33;  Phipson,  528-75. 

As  to  paragraph  (4),  which  is  founded  on  the  case  of 
Goss  v.  Lord  Nugent,  it  is  to  be  observed  that  the  para- 
graph is  purposely  so  drawn  as  not  to  touch  the  question  of 
the  effect  of  the  Statute  of  Frauds.  It  was  held  in  effect 
in  Goss  v.  Lord  Nugent  that  if  by  reason  of  the  Statute  of 


THE  LAW  OF  EVIDENCE.  C87 

Frauds  the  substituted  contract  could  not  be  enforced,  it 
would  not  have  the  effect  of  waiving  part  of  the  original 
contract ;  but  it  seems  the  better  opinion  that  a  verbal  res- 
cission of  a  contract  good  under  the  Statute  of  Frauds 
would  be  good.  See  Noble  v.  Ward,  1867,  L.  R.  2  Ex.  135, 
and  Pollock  on  'Contracts'  (6th  ed.),  235,  note  (i).  A 
contract  by  deed  can  be  released  only  by  deed,  and  this  case 
also  would  fall  within  the  proviso  to  paragraph  (4). 

The  cases  given  in  the  illustrations  will  be  found  to 
mark  sufficiently  the  various  rules  stated.  As  to  paragraph 
(5),  a  very  large  collection  of  cases  will  be  found  in  the 
notes  to  Wigglesworth  v.  Dallison,  1779,  1  S.  L.  C,  535- 
60,  but  the  consideration  of  them  appears  to  belong  rather 
to  mercantile  law  than  to  the  Law  of  Evidence.  For 
instance,  the  question  what  stipulations  are  consistent  with, 
and  what  are  contradictory  to,  the  contract  formed  by  sub- 
scribing a  bill  of  exchange,  or  the  contract  between  an  in- 
surer and  an  underwriter,  are  not  questions  of  the  Law  of 
Evidence. 

NOTE  XXXIII. 

(To    Article    91. —  Oral    Interpretation    of    Docu- 
ments.) 

Perhaps  the  subject-matter  of  this  article  does  not  fall 
strictly  within  the  Law  of  Evidence,  but  it  is  generally  con- 
sidered to  do  so ;  and  as  it  ha?  always  been  treated  as  a 
branch  of  the  subject,  I  have  thought  it  best  to  deal  with  it. 

The  general  authorities  for  the  propositions  in  the  text 
are  the  same  as  those  specified  in  the  last  note;  but  the 


688  A  DIGEST  OF 


great  authority  on  the  subject  is  the  work  of  Vice-Chan- 
cellor Wigram  on  '  Extrinsic  Evidence.'  Article  91,  in- 
deed, will  be  found,  on  examination,  to  differ  from  the  six 
propositions  of  Vice-Chancellor  Wigram  only  in  its  ar- 
rangement and  form  of  expression,  and  in  the  fact  that  it 
is  not  restricted  to  wills.  It  will,  I  think,  be  found,  on 
examination,  that  every  case  cited  by  the  Vice-Chancellor 
might  be  used  as  an  illustration  of  one  or  the  other  of  the 
propositions  contained  in  it. 

It  is  difficult  to  justify  the  line  drawn  between  the  rule 
as  to  cases  in  which  evidence  of  expressions  of  intention  is 
admitted  and  cases  in  which  it  is  rejected  (paragraph  7, 
illustrations  (k),  (I),  (m),  and  paragraph  8,  illustrations 
(n)and  (o)  ).  When  placed  side  by  side,  such  cases  as  Doe 
v.  Hiscocks  (illustration  (k))  and  Doe  v.  Needs  (illustra- 
tion (n))  produce  a  singular  effect.  The  vagueness  of  the 
distinction  between  them  is  indicated  by  the  case  of 
Charter  v.  Charter,  1871,  L.  K.  2  P.  &  M,  315.  In  this 
case  the  testator  Forster  Charter  appointed  "  my  son 
Forster  Charter  "  his  executor.  He  had  two  sons,  William 
Forster  Charter  and  Charles  Charter,  and  many  circum- 
stances pointed  to  the  conclusion  that  the  person  whom  the 
testator  wished  to  be  his  executor  was  Charles  Charter. 
Lord  Penzance  not  only  admitted  evidence  of  all  the  cir- 
cumstances of  the  case,  but  expressed  an  opinion  (p.  319) 
that,  if  it  were  necessary,  evidence  of  declarations  of  in- 
tention might  be  admitted  under  the  rule  laid  down  by 
Lord  Abinger  in  Hiscocks  v.  Hiscocks,  because  part  of  the 
language  employed  ("my  son Charter")  applied 


THE  LAW  OF  EVIDENCE.  689 

correctly  to  each  son,  and  the  remainder,  "  Forster,"  to 
neither.  This  mode  of  construing  the  rule  would  admit 
evidence  of  declarations  of  intention  both  in  cases  falling 
under  paragraph  8,  and  in  cases  falling  under  paragraph 
7,  which  is  inconsistent  not  only  with  the  reasoning  in  the 
judgment,  but  with  the  actual  decision  in  Doe  v.  HiscocJcs. 
It  is  also  inconsistent  with  the  principles  of  the  judgment 
in  the  later  case  of  Allgood  v.  Blake,  1873,  L.  R.  8  Ex.  160, 
where  the  rule  is  stated  by  Blackburn,  J.,  as  follows:  "  In 
construing  a  will,  the  Court  is  entitled  to  put  itself  in  the 
position  of  the  testator,  and  to  consider  all  material  facts 
and  circumstances  known  to  the  testator  with  reference 
to  which  he  is  to  be  taken  to  have  used  the  words  in  the 
will,  and  then  to  declare  what  is  the  intention  evidenced 
by  the  words  used  with  reference  to  those  facts  and  cir- 
cumstances which  were  (or  ought  to  have  been)  in  the 
mind  of  the  testator  when  he  used  those  words."  After 
quoting  Wigram  on  '  Extrinsic  Evidence,'  and  Doe  v.  Mis- 
cocks,  he  adds :  "  No  doubt,  in  many  cases  the  testator  has, 
for  the  moment,  forgotten  or  overlooked  the  material  facts 
and  circumstances  which  he  well  knew.  And  the  conse- 
quence sometimes  is  that  he  uses  words  which  express  an 
intention  which  he  would  not  have  wished  to  express,  and 
would  have  altered  if  he  had  been  reminded  of  the  facts 
and  circumstances.  But  the  Court  is  to  construe  the  will 
as  made  by  the  testator,  not  to  make  a  will  for  him;  and 
therefore  it  is  bound  to  execute  his  expressed  intention, 
even  if  there  is  great  reason  to  believe  that  he  has  by 
blunder  expressed  what  he  did  not  mean."  The  part  of 
44 


690  A  DIGEST  OF 


Lord  Penzance's  judgment  above  referred  to  was  unani- 
mously overruled  in  the  House  of  Lords ;  though  the  Court, 
being  equally  divided  as  to  the  construction  of  the  will,  re- 
fused to  reverse  the  judgment,  upon  the  principle  prce- 
sumitur  pro  negante. 

Conclusive  as  the  authorities  upon  the  subject  are,  it 
may  not,  perhaps,  be  presumptuous  to  express  a  doubt 
whether  the  conflict  between  a  natural  wish  to  fulfil  the 
intention  which  the  testator  would  have  formed  if  he  had 
recollected  all  the  circumstances  of  ihe  case ;  the  wish  to 
avoid  the  evil  of  permitting  written  instruments  to  be 
varied  by  oral  evidence ;  and  the  wish  to  give  effect  to  wills, 
has  not  produced  in  practice  an  illogical  compromise.  The 
strictly  logical  course,  I  think,  would  be  either  to  admit 
declarations  of  intention  both  in  cases  falling  under  para- 
graph 7,  and  in  cases  falling  under  paragraph  8,  or  to  ex- 
clude such  evidence  in  both  classes  of  cases,  and  to  hold 
void  for  uncertainty  every  bequest  or  devise  which  was 
shown  to  be  uncertain  in  its  application  to  facts.  Such  a 
decision  as  that  in  Stringer  v.  Gardiner  (see  illustration 
(m)),  the  result  of  which  was  to  give  a  legacy  to  a  person 
whom  the  testator  had  no  wish  to  benefit,  and  who  was  not 
either  named  or  described  in  his  will,  appears  to  me  to  be 
a  practical  refutation  of  the  principle  or  rule  on  which  it 
is  based. 

Of  course  every  document  whatever  must  to  some  extent 
be  interpreted  by  circumstances.  However  accurate  and 
detailed  a  description  of  things  and  persons  may  be,  oral 
evidence  is  always  wanted  to  show  that  persons  and  things 


THE  LAW  OF  EVIDENCE.  «91 

answering  the  description  exist ;  and  therefore  in  every 
case  whatever,  every  fact  must  be  allowed  to  be  proved  to 
which  the  document  does,  or  probably  may,  refer;  but  if 
more  evidence  than  this  is  admitted,  if  the  Court  may  look 
at  circumstances  which  affect  the  probability  that  the  tes- 
tator would  form  this  intention  or  that,  why  should  declara- 
tions of  intention  be  excluded?  If  the  question  is,  "  "What 
did  the  testator  say  ?  "  why  should  the  Court  look  at  the 
circumstances  that  he  lived  with  Charles,  and  was  on  bad 
terms  with  William  ?  How  can  any  amount  of  evidence 
to  show  that  the  testator  intended  to  write  "  Charles  "  show 
that  what  he  did  write  means  "  Charles  "  ?  To  say  that 
"  Forster  "  means  "  Charles,"  is  like  saying  that  "  two  " 
means  "  three."  If  the  question  is  "  What  did  the  testator 
wish  ?  "  why  should  the  Court  refuse  to  look  at  his  declara- 
tions of  intention  ?  And  what  third  question  can  be  asked  ? 
The  only  one  which  can  be  suggested  is,  "  What  would 
the  testator  have  meant  if  he  had  deliberately  used  un- 
meaning words  ?  "  The  only  answer  to  this  would  be,  he 
would  have  had  no  meaning,  and  would  have  said  nothing, 
and  his  bequest  should  be  pro  tanto  void. 

NOTE  XXXIV. 

(To  Article  92. —  Evidence  by  Strangers  to  Docu- 
ments.) 

See  2  Ph.  Ev.  364;  Star.  726;  Taylor  (from  Green- 
leaf),  ss.  1149,  Phipson,  533.  Various  cases  are  quoted  by 
these  writers  in  support  of  the  first  part  of  the  proposition 
in  the  article;  but  R.  v.  Cheadle  is  the  only  one  which 


G92  A  DIGEST  OF 


appears  to  me  to  come  quite  up  to  it.     They  are  all  settle- 
ment cases. 

NOTE  XXXV. 

(To  Chapter  XIII. —  Production  and  Effect  of 
Evidence.) 

In  this  and  the  following  chapter  many  matters  usually 
introduced  into  treatises  on  evidence  are  omitted,  because 
they  appear  to  belong  either  to  the  subject  of  pleading,  or 
to  different  branches  of  Substantive  Law.  For  instance, 
the  rules  as  to  the  burden  of  proof  of  negative  averments  in 
criminal  cases  (1  Ph.  Ev.  555,  &c. ;  3  Euss.  on  Cr.  400- 
403)  belong  rather  to  criminal  procedure  than  to  evidence. 
Again,  in  every  branch  of  Substantive  Law  there  are  pre- 
sumptions more  or  less  numerous  and  important,  which 
can  be  understood  only  in  connection  with  those  branches 
of  the  law.  Such  are  the  presumptions  as  to  the  ownership 
of  property,  as  to  consideration  for  a  bill  of  exchange,  as  to 
many  of  the  incidents  of  the  contract  of  insurance.  Pass- 
ing over  all  these,  I  have  embodied  in  Chapter  XIV.  those 
presumptions  only  which  bear  upon  the  proof  of  facts 
likely  to  be  proved  on  a  great  variety  of  different  occasions, 
and  those  estoppels  only  which  arise  out  of  matters  of  fact, 
as  distinguished  from  those  which  arise  upon  deeds  or 
judgments. 


TEE  LAW  OF  EVIDENCE.  693 

NOTE  XXXVI. 

(To  Article  94. —  Presumption  of  Innocence.) 

The  presumption  of  innocence  belongs  principally  to  the 
Criminal  Law,  though  it  has,  as  the  illustrations  show,  a 
bearing  on  the  proof  of  ordinary  facts.  The  question, 
"  What  doubts  are  reasonable  in  criminal  cases  ?  "  belongs 
to  the  Criminal  Law. 

NOTE  XXXVII. 

(To  Article  101. — "  Omnia  Rite  Acta.") 

The  first  part  of  this  article  is  meant  to  give  the  effect  of 
the  presumption,  omnia  esse  rite  acta,  1  Ph.  Ev.  480,  &c. ; 
Taylor,  ss.  139,  &c. ;  Best,  s.  353,  &c.  This,  like  all  pre- 
sumptions, is  a  very  vague  and  fluid  rule  at  best,  and  is 
applied  to  a  great  variety  of  different  subject-matters. 

NOTE  XXXVIII. 

(To   Articles   102-105. —  Estoppels   in   Pais.) 

These  articles  embody  the  principal  cases  of  estoppels  in 
pais,  as  distinguished  from  estoppels  by  deed  and  by  record. 
As  they  may  be  applied  in  a  great  variety  of  ways  and  to 
infinitely  various  circumstances,  the  application  of  these 
rules  has  involved  a  good  deal  of  detail.  The  rules  them- 
selves appear  clearly  enough  on  a  careful  examination  of 
the  cases.  The  latest  and  most  extensive  collection  of  cases 
is  to  be  seen  in  2  S.  L.  C.  808-40,  where  the  cases  referred 


€94  A  DIGEST  OF 


to  in  the  text  and  many  others  are  abstracted.  See,  too,  1 
Ph.  Ev.  350-3;  Taylor,  ss.  101-3,  776,  778;  Best,  s.  543; 
Phipson,  584-8. 

Article  102  contains  the  rule  in  Pickard  v.  Bears,  1837, 
6  A.  &  E.  at  p.  474,  as  interpreted  and  limited  by  Parke, 
B.,  in  Freeman  v.  Cooke,  1848,  2  Ex.  654,  663.  The  second 
paragraph  of  the  article  is  founded  on  the  application  of 
this  rule  to  the  case  of  a  negligent  act  causing  fraud.  The 
rule,  as  expressed,  is  collected  from  a  comparison  of  the  fol- 
lowing cases:  Bank  of  Ireland  v.  Evans,  1855,  5  H.  L. 
Ca.  389 ;  Swan  v.  North  British  Australasian  Company, 
which  was  before  three  Courts,  see  1859,  7  C.  B.  (X.S.), 
400 ;  1862,  7  H.  &  N.  603  ;  1863,  2  H.  &  C.  175,  where  the 
judgment  of  the  majority  of  the  Court  of  Exchequer  was 
reversed;  and  Halifax  Guardians  v.  Wheelwright,  1875, 
L.  R.  10  Ex.  183,  in  which  all  the  cases  are  referred  to. 
All  of  these  refer  to  Young  v.  Grote,  1827,  4  Bing.  253, 
and  its  authority  has  always  been  upheld,  though  not  al- 
ways on  the  same  ground.  The  rules  on  this  subject  are 
stated  in  general  terms  in  Carr  v.  L.  &  N.  W.  Railway, 
1875,  10  C.  P.  316-17. 

It  would  be  difficult  to  find  a  better  illustration  of  the 
gradual  way  in  which  the  judges  construct  rules  of  evi- 
dence, as  circumstances  require  it,  than  is  afforded  by  a 
study  of  these  cases. 


THE  LAW  OF  EVIDENCE.  G95 

NOTE  XXXIX. 
(To  Chapter  XV. —  Competency  of  Witnesses.) 

The  law  as  to  the  competency  of  witnesses  war  formerly 
the  most,  or  nearly  the  most,  important  and  extensive 
branch  of  the  Law  of  Evidence.  Indeed,  rules  as  to  the 
incompetency  of  witnesses,  as  to  the  proof  of  documents, 
and  as  to  the  proof  of  some  particular  issues,  are  nearly  the 
only  rules  of  evidence  treated  of  in  the  older  authorities. 
Great  part  of  Bentham's  '  Kationale  of  Judicial  Evidence  ' 
is  directed  to  an  exposure  of  the  fundamentally  erroneous 
nature  of  the  theory  upon  which  these  rules  were  founded ; 
and  his  attack  upon  them  has  met  with  a  success  go  nearly 
complete  that  it  has  itself  become  obsolete.  The  history  of 
the  subject  is  to  be  found  in  Mr.  Best's  work,  book  ii. 
part  i.  ch.  ii.  ss.  132-88.  See,  too,  Taylor,  ss.  1342-1393, 
and  K.  N.  P.  160-4.  As  to  the  old  law,  see  1  Ph.  Ev.  5 
et  seq.,  104. 

NOTE  XL. 

(To  Article  107. —  What  Witnesses  Incompetent.) 

The  authorities  for  the  first  paragraph  are  given  at  great 
length  in  Best,  ss.  146-65.  See,  too,  Taylor,  s.  1375; 
Phipson,  436-8.  As  to  paragraph  2,  see  Best,  s.  148;  1 
Ph.  Ev.  7 ;  2  Ph.  Ev.  457 ;  Taylor,  s.  1376. 


696  A  DIGEST  OF 


NOTE  XLI. 

(To  Article  108. —  Competency  in  Criminal  Cases.) 

At  Common  Law  the  parties  and  their  husbands  and 
wives  were  incompetent  in  all  cases.  This  incompetency 
was  removed  as  to  the  parties  in  civil,  but  not  in  criminal 
cases,  by  14  &  15  Vict.  c.  99,  s.  2;  and  as  to  their  husbands 
and  wives,  by  16  &  17  Vict.  c.  83,  ss.  1,  2.  But  sect.  2 
expressly  reserved  the  Common  Law  as  to  criminal  cases 
and  proceedings  instituted  in  consequence  of  adultery. 

The  words  relating  to  adultery  were  repealed  by  32  & 
33  Vict.  c.  68,  s.  3,  which  is  the  authority  for  Article  109. 

Persons  interested  and  persons  who  had  been  convicted 
of  certain  crimes  were  also  incompetent  witnesses,  but 
their  incompetency  was  removed  by  6  &  7  Vict.  c.  85. 

Various  modern  statutes  mentioned  in  Note  1,  p.  289,. 
made  an  accused  person  and  his  or  her  wife  or  husband 
competent  witnesses  in  various  cases,  and  now  the  Crim- 
inal Evidence  Act,  1898,  has  removed  their  incompetency 
to  the  extent  mentioned  in  the  text.  The  law  on  the  sub- 
ject cannot,  however,  be  correctly  stated  without  reference 
to  the  old  Common  Law  Rule. 

NOTE  XLII. 

(To   Article   111. —  Privilege   of   Judges   and   Wit- 
nesses.) 

The  cases  on  which  these  articles  are  founded  are  only 
Nisi  Prius  decisions:  but  as  they  are  quoted  by  writers  of 


THE  LAW  OF  EVIDENCE.  697 

eminence  (1  Ph.  Ev.  139;  Taylor,  s.  938),  I  have  referred 
to  them. 

In  the  trial  of  Lord  Thanet,  for  an  attempt  to  rescue 
Arthur  O'Connor,  Serjeant  Shepherd,  one  of  the  special 
commissioners,  before  whom  the  riot  took  place  in  court 
at  Maidstone,  gave  evidence,  R.  v.  Lord  Thanet,  1799,  27 
S.  T.  at  p.  836. 

I  have  myself  been  called  as  a  witness  on  a  trial  for 
perjury  to  prove  what  was  said  before  me  when  sitting  as 
an  arbitrator.  The  trial  took  place  before  Mr.  Justice 
Hayes  at  York,  in  1869.     See,  however,  Article  123b. 

As  to  the  case  of  an  advocate  giving  evidence  in  the 
course  of  a  trial  in  which  he  is  professionally  engaged,  see 
several  cases  cited  and  discussed  in  Best,  ss.  184-6. 

In  addition  to  those  cases,  reference  may  be  made  to  the 
trial  of  Home  Tooke  for  a  libel  in  1777,  when  he  proposed 
to  call  the  Attorney-General  (Lord  Thurlow),  20  S.  T.  at 
rj.  740.  These  cases  do  not  appear  to  show  more  than 
that,  as  a  rule,  it  is  for  obvious  reasons  improper  that 
those  who  conduct  a  case  as  advocates  should  lie  called  as 
witnesses  in  it.  Cases,  however,  might  occur  in  which  it 
might  be  absolutely  necessary  to  do  so.  For  instance,  a 
solicitor  engaged  as  an  advocate  might,  not  at  all  improb- 
ably, be  the  attesting  witness  to  a  deed  or  will. 

NOTE  XLIII. 

(To  Article   115. —  Professional  Communications.) 
This  article  sums  up  the  rule  as  to  professional  commu- 
nications, every  part  of  which  is  explained  at  great  length. 


698  A  DIGEST  OF 


and  to  much  the  same  effect,  1  Ph.  Ev.  105-122 ;  Taylor, 
ss.  911-18a;  Best,  s.  581.  See,  too,  Phipson,  181-91.  It 
is  so  well  established  and  so  plain  in  itself  that  it  requires 
only  negative  illustrations.  It  is  stated  at  length  by  Lord 
Brougham  in  Greenough  v.  G  ask  ell,  1833,  1  M.  &  K.  98. 
The  last  leading  case  on  the  subject  is  R.  v.  Cox  and 
Railton,  1884,  14  Q.  B.  D.  153.  Leges  Henrici  Primi, 
v.  17:  "Caveat  3acerdos  ne  de  hiis  qui  ei  confitentur 
peccata  alicui  recitet  quod  ei  conf  essus  est,  non  propinquis, 
non  extraneis.  Quod  si  fecerit  deponetur  et  omnibus 
diebus  vitse  suse  ignominiosus  peregrinando  poeniteat." 
1  M.  508. 

NOTE  XLIV. 

(To  Article  117. —  Privilege  of  Clergymen  and 
Priests.) 

The  question  whether  clergymen,  and  particularly 
whether  Roman  Catholic  priests,  can  be  compelled  to  dis- 
close confessions  made  to  them  professionally,  has  never 
been  solemnly  decided  in  England,  though  it  is  stated  by 
the  text  writers  that  they  can.  See  1  Ph.  Ev.  109 ;  Taylor, 
ss.  916-17;  R.  K  P.  171;  Starkie,  40.  The  question  is 
discussed  at  some  length  in  Best,  ss.  583-4;  and  a  pamphlet 
was  written  to  maintain  the  existence  of  the  privilege  by 
Mr.  Baddeley  in  1865.  Mr.  Best  shows  clearly  that  none 
of  the  decided  cases  are  directly  in  point,  except  Butler  v. 
Moore,  1802,  MacXally,  253-4,  and  possibly  R.  v.  Sparkes, 
which  was  cited  by  Garrow  in  arguing  Du  Barre  v.  Livette 
before  Lord  Kenyon,  1791,  1  Pea.  108.     The  report  of  his 


TEE  LAW  OF  EVIDENCE.  C99 

argument  is  in  these  words :  "  The  prisoner  being  a  Papist, 
had  made  a  confession  before  a  Protestant  clergyman  of 
the  crime  for  which  he  was  indicted;  and  that  confession 
was  permitted  to  be  given  in  evidence  on  the  trial  "  (before 
Buller,  J.);  "  and  he  was  convicted  and  executed."  The 
report  is  of  no  value,  resting  as  it  does  on  Peake's  note  of 
Garrow's  statement  of  a  case  in  which  he  was  probably  not 
personally  concerned;  and  it  does  not  appear  how  the  ob- 
jection was  taken,  or  whether  the  matter  was  ever  argued. 
Lord  Kenyon,  however,  is  said  to  have  observed:  "I 
should  have  paused  before  I  admitted  the  evidence  there 
admitted." 

Mr.  Baddeley's  argument  is  in  a  few  words,  that  the 
privilege  must  have  been  recognised  when  the  Roman 
Catholic  religion  was  established  by  law,  and  that  it  has 
never  been  taken  away. 

I  think  that  the  modern  Law  of  Evidence  is  not  so  old 
as  the  Reformation,  but  has  grown  up  by  the  practice  of 
the  Courts,  and  by  decisions  in  the  course  of  the  last  two 
centuries.  It  came  into  existence  at  a  time  when  excep- 
tions in  favour  of  auricular  confessions  to  Roman  ( Jatholic 
priests  were  not  likely  to  be  made.  The  general  rule  19 
that  every  person  must  testify  to  what  he  knows.  An 
exception  to  the  general  rule  has  been  established  in 
regard  to  legal  advisers,  but  there  is  nothing  to  show  that 
it  extends  to  clergymen,  and  it  is  usually  so  .-rated  as  not  to 
include  them.  This  is  the  ground  on  which  the  Irish  Mas- 
ter of  the  Rolls  (Sir  Michael  Smith)  decided  the  case  of 
Butler  v.  Moore,  supra.     It  was  a  demurrer  to  a  rule  to 


700  A  DIGEST  OF 


administer  interrogatories  to  a  Roman  Catholic  priest  as 
to  matter  which  he  said  he  knew,  if  at  all,  professionally 
only.  The  judge  said,  "  It  was  the  undoubted  legal  con- 
stitutional right  of  every  subject  of  the  realm  who  has  a 
cause  depending,  to  call  upon  a  fellow-subject  to  testify 
what  he  may  know  of  the  matters  in  issue;  and  every  man 
is  bound  to  make  the  discovery,  unless  specially  exempted 
and  protected  by  law.  It  was  candidly  admitted  that  no 
special  exemption  could  be  shown  in  the  present  instance, 
and  analogous  cases  and  principles  alone  were  relied 
upon."  The  analogy,  however,  was  not  considered  suffi- 
ciently strong. 

Several  judges  have,  for  obvious  reasons,  expressed  the 
strongest  disinclination  to  compel  such  a  disclosure.  Thus 
Best,  C. J.,  said,  "  I,  for  one,  will  never  compel  a  clergy- 
man to  disclose  communications  made  to  him  by  a  pris- 
oner; but  if  he  chooses  to  disclose  them  I  shall  receive 
them  m  evidence  "  (obiter,  in  Broad  v.  Pitt,  1828,  3  C. 
&  P.  518).  Alderson,  B.,  thought  (rather  it  would  seem 
as  a  matter  of  good  feeling  than  as  a  matter  of  positive 
law)  that  snch  evidence  should  not  be  given.  R.  v.  Griffin, 
1853,  6  Cox,  Cr.  Ca.  219. 

NOTE  XLIVa. 

(To  Article  123a. —  Unsworn  Evidence, 
Relevancy  of.) 

In  R.  v.  lYealand,  1888,  20  Q.  B.  D.  827,  the  indict- 
ment, under  the  Criminal  Law  Amendment  Act,  s.  4r 
charged  the  prisoner  with  carnally  knowing  a  girl  under 


THE  LAW  OF  EVIDENCE.  701 

13.  The  child,  under  the  same  section,  gave  evidence 
without  being  sworn.  The  jury  acquitted  the  prisoner  of 
carnally  knowing  the  child,  and  found  him  guilty  of  inde- 
cent assault.  The  conviction  was  affirmed,  though  on  a 
charge  of  indecent  assault  the  unsworn  evidence  would 
have  been  inadmissible,  and  though  the  evidence  apart 
from  the  child's  statement  was  insufficient  to  support  a 
conviction.  The  ground  of  the  decision  was  that  sect.  4 
of  the  Act  made  the  unsworn  evidence  admissible,  and 
sect.  9  made  the  verdict  lawful.  Lord  Coleridge,  C.J., 
described  the  result  as  "  an  anomaly,"  and  as  showing  "  an 
unsatisfactory  state  of  the  law."  In  R.  v.  Paul,  1890,  25 
Q.  B.  D.  202,  the  indictment  was  in  two  counts,  one  under 
sect.  4  of  the  Criminal  Law  Amendment  Act,  1885, 
charging  an  attempt  to  have  carnal  knowledge  of  a  girl 
under  thirteen,  and  the  other  charging  indecent  assault. 
Under  sect.  4  the  child  gave  evidence  without  being  sworn. 
The  other  evidence  was  insufficient  to  support  a  convic- 
tion, but  contributed  material  corroboration  of  the 
unsworn  statement.  The  jury  acquitted  the  prisoner  (by 
the  direction  of  the  judge)  on  the  first  count,  and  found 
him  guilty,  on  the  second,  of  indecent  assault.  The  con- 
viction was  quashed  on  the  ground  that,  on  the  substantial 
count  for  indecent  assault,  not  being  a  charge  under  s.  4 
of  the  Criminal  Law  Amendment  Act,  the  unsworn  evi- 
dence of  the  child  was  inadmissible.  The  judgment  of  the 
Court  (delivered  by  Hawkins,  J.,  and  concurred  in  by 
Lord  Coleridge,  C.J.,  and  Mathew,  Day,  and  Grantham, 
JJ.)  distinguished  B.  v.  Wealand  on  the  ground  that  there 


702  A  DIGEST  OF 


the  verdict  was  returned,  as  by  law  it  could  be,  upon  a 
count  (under  s.  4)  upon  which  the  unsworn  evidence  was 
admissible.  In  this  judgment  "the  law  created  by  the 
Statute  "  was  said  to  be  "  in  a  very  unsatisfactory  state." 
It  is  clear  that  the  two  cases  cannot  be  reconciled  upon  a 
satisfactory  principle,  and  that,  both  being  authoritative, 
the  admissibility  of  the  unsworn  evidence  depends  in  such 
cases  upon  the  form  of  the  indictment.  It  is  to  be 
observed  that  since  the  passing  of  the  Prevention  of 
Cruelty  to  Children  Act,  1894,  (57  &  58  Vict.  c.  41,  s.  15, 
&  Schedule),  if  the  indecent  assault  were  an  "  offence  in- 
volving bodily  injury  "  to  the  child,  it  might  be  argued 
that  the  unsworn  statement  of  the  child  was  admissible, 
not  under  the  Criminal  Law  Amendment  Act,  1885,  but 
under  the  Prevention  of  Cruelty  to  Children  Act.  It 
seems  probable,  however,  that  the  words  "  offence  involv- 
ing bodily  injury  "  mean  an  offence  necessarily  involving 
bodily  injury,  which  indecent  assault  could  hardly  be  said 
to  be.  If  an  indictment  for  having  carnal  knowledge  of 
a  girl  under  thirteen  in  one  count  were  so  drawn  as  to 
comprise  —  as  it  very  well  might  —  an  allegation  that  the 
prisoner  indecently  assaulted  the  child,  it  would  seem  that 
R.  v.  Wealand  would  make  the  child's  unsworn  testimony 
admissible,  and  that  in  the  event  of  a  conviction  for  inde- 
cent assault  B.  v.  Paul  would  not  apply. 


THE  LAW  OF  EVIDENCE.  703 

NOTE  XLY. 

(To  Articles  126,  127,  128. —  Examination,  etc.,  of 
Witnesses.) 

These  articles  relate  to  matters  almost  too  familiar  to 
require  authority,  as  no  one  can  watch  the  proceedings  of 
any  Court  of  Justice  without  seeing  the  rules  laid  down 
in  them  continually  enforced.  The  subject  is  discussed  at 
length  in  2  Ph.  Ev.  pt.  2,  chap.  x.  p.  456,  &c;  Taylor, 
s.  1394,  &c;  Phipson,  467-80;  see,  too,  Best,  s.  631,  &c. 
In  respect  to  leading  questions,  it  is  said,  "  It  is  entirely  a 
question  for  the  presiding  judge  whether  or  not  the  exam- 
ination is  being  conducted  fairly."    E.  ~N.  P.  165. 

NOTE  XLVI. 

(To    Article    129. —  Limits    of    Cross-examination.) 

This  article  states  a  practice  which  is  now  common,  and 
which  never  was  more  strikingly  illustrated  than  in  the 
case  referred  to  in  the  illustration.  But  the  practice  which 
it  represents  is  modern;  and  I  submit  that  it  requires  the 
qualification  suggested  in  the  text.  I  shall  not  believe, 
unless  and  until  it  is  so  decided  upon  solemn  argument,  that 
by  the  law  of  England  a  person  who  is  called  to  prove  a 
minor  fact,  not  really  disputed,  in  a  case  of  little  impor- 
tance, thereby  exposes  himself  to  having  every  transaction 
of  his  past  life,  however  private,  inquired  into  by  persons 


rot  A  DIGEST  OF 


who  may  wish  to  serve  the  basest  purposes  of  fraud  or  re- 
venge by  doing  so.  Suppose,  for  instance,  a  medical  man 
were  called  to  prove  the  fact  that  a  slight  wound  had  been 
inflicted,  and  had  been  attended  to  by  him,  would  it  be 
lawful,  under  pretence  of  testing  his  credit,  to  compel  him 
to  answer  upon  oath  a  series  of  questions  as  to  his  private 
affairs,  extending  over  many  years,  and  tending  to  expose 
transactions  of  the  most  delicate  and  secret  kind,  in  which 
the  fortune  and  character  of  other  persons  might  be  in- 
volved? If  this  is  the  law,  it  should  be  altered.  The  fol- 
lowing section  of  the  Indian  Evidence  Act  (1  of  872)  may 
perhaps  be  deserving  of  consideration.  After  authorising, 
in  sect.  147,  questions  as  to  the  credit  of  the  witness  the 
Act  proceeds  as  follows  in  sect.  148: — 

"If  any  such  question  relates  to  a  matter  not  relevant  to 
the  suit  or  proceeding,  except  so  far  as  it  affects  the  credit 
of  the  witness  by  injuring  his  character,  the  Court  shall 
decide  whether  or  not  the  witness  shall  be  compelled  to 
answer  it,  and  may,  if  he  thinks  fit,  warn  the  witness  that 
he  is  not  obliged  to  answer  it.  In  exercising  this  discretion, 
the  Court  shall  have  regard  to  the  following  considera- 
tions:— 

"(1)  Such  questions  are  proper  if  they  are  of  such  a 
nature  that  the  truth  of  the  imputation  conveyed  by  them 
would  seriously  affect  the  opinion  of  the  Court  as  to  the 
credibility  of  the  witness  on  the  matter  to  which  he 
testifies. 

"(2)  Such  questions  are  improper  if  the  imputation 
which  they  convey  relates  to  matters  so  remote  in  time  or 


TEE  LAW  OF  EVIDENCE.  705 

of  such  a  character  that  the  truth  of  the  imputation  would 
not  affect,  or  would  affect  in  a  slight  degree,  the  opinion  of 
the  Court  as  to  the  credibility  of  the  witness  on  the  matter 
to  which  he  testifies. 

"(3)  Such  questions  are  improper  if  there  is  a  great 
disproportion  between  the  importance  of  the  imputation 
made  against  the  witness's  character  and  the  importance  of 
his  evidence." 

Order  XXXVI.,  rule  38,  expressly  gives  the  judge  a 
discretion  which  was  much  wanted,  and  which  I  believe  he 
always  possessed. 

NOTE  XLVII. 

(To  Article   131. —  Statements  Inconsistent   with 
Present  Testimony.) 

The  contents  of  this  section  are  intended  to  represent 
sects.  3  and  4  of  the  Criminal  Procedure  Act,  1865,  28  & 
29  Vict.  c.  18,  which  re-enacted  sects.  22  and  23  of  the 
Common  Law  Procedure  Act,  1854,  17  &  18  Vict.  c.  125, 
now  repealed  by  the  Statute  Law  Revision  Act,  1892.  The 
two  sections  in  question  are  as  follows: — 

3.  A  party  producing  a  witness  shall  not  be  allowed  to 
impeach  his  credit  by  general  evidence  of  bad  character; 
but  he  may,  in  case  the  witness  shall,  in  the  opinion  of  the 
judge,  prove  adverse,  contradict  him  by  other  evidence,  or, 
by  leave  of  the  judge,  prove  that  he  has  made  at  other 
times  a  statement  inconsistent  with  his  present  testimony; 
but  before  such  last-mentioned  proof  can  be  given,  the 
circumstances  of  the  supposed  statement,  sufficient  to  dee- 
45 


roe  A  DIGEST  OF 


ignate  the  particular  occasion,  must  be  mentioned  to  the 
witness,  and  he  must  be  asked  whether  or  not  he  has  made 
such  statement. 

4.  If  a  witness,  upon  cross-examination  as  to  a  former 
statement  made  by  him  relative  to  the  subject-matter  of 
the  indictment  or  proceeding,  and  inconsistent  with  his 
present  testimony,  does  not  distinctly  admit  that  he  has 
made  such  statement,  proof  may  be  given  that  he  did  in 
fact  make  it;  but  before  such  proof  can  be  given,  the  cir- 
cumstances of  the  supposed  statement,  sufficient  to  desig- 
nate the  particular  occasion,  must  be  mentioned  to  the 
witness,  and  he  must  be  asked  whether  or  not  he  has  made 
such  statement. 

The  sections  are  obviously  ill-arranged;  but  apart  from 
this,  s.  3  is  so  worded  as  to  suggest  a  doubt  whether  a 
party  to  an  action  has  a  right  to  contradict  a  witness  called 
by  himself  whose  testimony  is  adverse  to  his  interests.  The 
words  "he  may,  in  case  the  witness  shall,  in  the  opinion  of 
the  judge,  prove  adverse,  contradict  him  by  other  evi- 
dence," suggest  that  he  cannot  do  so  unless  the  judge  is  of 
that  opinion.  This  is  not,  and  never  was,  the  law.  In 
Greenough  v.  Eccles,  1859,  5  C.  B.  (N.S.),  at  p.  802, 
Williams,  J.,  says;  "The  law  was  clear  that  you  might  not 
discredit  your  own  witness  by  general  evidence  of  bad 
character;  but  you  might,  nevertheless,  contradict  him  by 
other  evidence  relevant  to  the  issue;"  and  he  adds,  at  p. 
S03:  "It  is  impossible  to  suppose  that  the  Legislature  could 
have  really  intended  to  impose  any  fetter  whatever  on  the 
right  of  a  party  to  contradict  his  own  witness  by  other  evi- 


THE  LAW  OF  EVIDENCE. 


dence  relevant  to  the  issue — a  right  not  only  established 
by  authority,  but  founded  on  the  plainest  good  sense." 

Cockburn,  L.C.J.,  in  the  same  case,  at  p.  806,  said  of 
the  22nd  section  of  the  Common  Law  Procedure  Act, 
1854:  "There  has  been  a  great  blunder  in  the  drawing  of 
it,  and  on  the  part  of  those  who  adopted  it.  .  .  .  Perhaps 
the  better  course  is  to  consider  the  second  branch  of  the 
section  as  altogether  superfluous  and  useless  (p.  806)." 
On  this  authority  I  have  omitted  it. 

For  many  years  before  the  Common  Law  Procedure 
Act  of  1854  it  was  held,  in  accordance  with  Queen  Caro- 
line's Case,  1820,  2  Br.  &  Bing.  2S6-91,  that  a  witness 
could  not  be  cross-examined  as  to  statements  made  in 
writing,  unless  the  writing  had  been  first  proved.  Tho 
effect  of  this  rule  in  criminal  cases  was  that  a  witness 
could  not  be  cross-examined  as  to  what  he  had  said  before 
the  magistrates  without  putting  in  his  deposition,  and  this 
gave  the  prosecuting  counsel  the  reply.  Upon  this  subject 
rules  of  practice  were  issued  by  the  judges  in  1837,  when 
the  Prisoners  Counsel  Act  came  into  operation.  The 
rules  are  published  in  7  C.  &  P.  676.  They  would  appear 
to  have  been  superseded  by  the  28  Vict.  c.  18. 

NOTE  XLVIII. 

The  Statute  Law  relating  to  the  subject  of  evidence 
may  be  regarded  either  as  voluminous  or  not,  according 
to  the  view  taken  of  the  extent  of  the  subject. 

The  number  of  statutes  classified  under  the  head  <rExi- 
dence"  in  Chitty's  Statutes  is  30.     The  number  referred 


708  A  DIGEST  OF 


to  under  that  head  in  the  Index  to  the  Revised  Statutes  is 
68.  Many  of  these,  however,  relate  only  to  the  proof  of 
particular  documents,  or  matters  of  fact  which  may 
become  material  under  special  circumstances. 

Of  these  I  have  noticed  a  few,  which,  for  various 
reasons,  appear  important.  Such  are:  34  &  35  Vict.  c. 
112,  s.  19  (see  Article  11);  9  Geo.  IV.  c.  14,  s.  1,  amended 
by  19  &  20  Vict.  c.  97,  s.  13  (see  Article  17);  9  Geo.  IV. 
c.  14,  s.  3;  3  &  4  Will.  IV.  c.  42  (see  Article  28);  41  & 
42  Vict.  c.  11  (Article  36);  7  &  8  Geo.  IV.  c.  28,  s.  11, 
amended  by  6  &  7  William  IV.  c.  Ill;  24  &  25  Vict.  c. 
96,  s.  116;  24  &  25  Vict.  c.  99,  s.  37;  61  &  62  Vict.  c.  36, 
s.  1  (6)  (see  Article  56);  61  &  62  Vict.  c.  36,  s.  1  (Article 
108);  8  &  9  Vict.  c.  10,  s.  6;  48  &  49  Vict.  c.  69,  s.  4 
(Article  121);  7"&  8  Will.  III.  c.  3,  ss.  2-4;  39  &  40  Geo. 
III.  c.  93  (Article  122);  11  &  12  Vict.  c.  42,  s.  17  (Article 
140);  30  &  31  Vict.  c.  35,  s.  6  (Article  141);  53  &  54 
Vict.  c.  37,  s.  6  (Article  141a);  57  &  58  Vict.  c.  41,  ss.  13, 
14  (Article  141b);  57  &  58  Vict.  c.  60,  s.  691  (Article 
142). 

Many,  again,  refer  to  pleading  and  practice  rather  than 
evidence,  in  the  sense  in  which  I  employ  the  word.  Such 
are  the  Acts  which  enable  evidence  to  be  taken  on  com- 
mission if  a  witness  is  abroad,  or  relate  to  the  administra- 
tion of  interrogatories. 

Those  which  relate  directly  to  the  subject  of  evidence 
as  defined  in  the  Introduction,  are  the  eleven  following 
Acts: — 


THE  LAW  OF  EVIDENCE.  709 

1. 

46  Geo.  Ill,  c.  37  (1  section;  see  Article  120).  This 
Act  qualifies  the  rule  that  a  witness  is  not  bound  to  answer 
questions  which  criminate  himself  by  declaring  that  he  is 
not  excused  from  answering  questions  which  fix  him  with 
a  civil  liability. 

2. 

6  &  7  Vict.  c.  85.  This  Act  abolishes  incompetency 
from  interest  or  crime  (4  sections;  see  Article  106). 

3. 

8  &  9  Vict.  c.  113 :  "An  Act  to  facilitate  the  admission 
in  evidence  of  certain  official  and  other  documents  "  (8th 
August,  1845;  7  sections). 

S.  1,  after  preamble  reciting  that  many  documents  are, 
by  various  Acts,  rendered  admissible  in  proof  of  certain 
particulars  if  authenticated  in  a  certain  way,  enacts  inter 
alia  that  proof  that  they  were  so  authenticated  shall  not  be 
required  if  they  purport  to  be  so  authenticated.  (Arti- 
cle 79.) 

S.  2.  Judicial  notice  to  be  taken  of  signatures  of  certain 
judges.     (Article  58,  latter  part  of  clause  8.) 

S.  5.  Certain  Acts  of  Parliament,  proclamations,  &c, 
may  be  proved  by  copies  purporting  to  be  Queen's  printers' 
copies.     (Article  81.) 

S.  4.  Penalty  for  forgery,  &c.  This  is  omitted  as  be- 
longing to  the  Criminal  Law. 


710  A  DIGEST  OF 


4. 

14  &  15  Vict.  c.  99:  "  The  Evidence  Act,  1851  "  (7th 
August,  1851;  20  sections): — 

S.  2  makes  parties  admissible  witnesses,  except  in  cer- 
tain cases.     (Effect  given  in  Articles  106  &  108.) 

S.  3.  Persons  accused  of  crime,  and  their  husbands  and 
wives,  not  to  be  competent.  Implicitly  repealed  by  the 
Criminal  Evidence  Act,  1898.     (Article  108.) 

S.  4.  The  first  three  sections  not  to  apply  to  proceed- 
ings instituted  in  consequence  of  adultery.  Repealed  by 
32  &  33  Vict.  c.  68.  (Effect  of  repeal,  and  of  s.  3  of  the 
last-named  Act,  given  in  Article  109.) 

S.  5.  None  of  the  sections  above  mentioned  to  affect 
the  Wills  Act  of  1838,  7  Will.  IV.  &  1  Vict.  c.  26. 
(Omitted  as  part  of  the  Laws  of  Wills.) 

S.  6.  The  Common  Law  Courts  authorised  to  grant 
inspection  of  documents.  (Omitted  as  part  of  the  Law  of 
Civil  Procedure.) 

S.  7.  Mode  of  proving  proclamations,  treaties,  &c. 
(Article  84.) 

S.  8.  Proof  of  qualification  of  apothecaries.  (Omitted 
from  the  text  as  part  of  the  law  relating  to  medical 
men.) 

Ss.  9,  10,  11.  Documents  admissible  either  in  England 
or  in  Ireland,  or  in  the  colonies,  without  proof  of  seal,  &c, 
admissible  in  all.     (Article  80.) 

S.  13.  Proof  of  previous  convictions.  (Omitted  from 
the  text  as  belonging  to  Criminal  Procedure.) 


THE  LAW  OF  EVIDENCE.  711 

S.  14.  Certain  documents  provable  by  examined  copies 
or  copies  purporting  to  be  duly  certified.  (Article  79, 
last  paragraph.) 

S.  15.  Certifying  false  documents  a  misdemeanour. 
(Omitted  as  belonging  to  Criminal  Law.) 

S.  16.  Who  may  administer  oaths.     (Article  124.) 

S.  17.  Penalties  for  forging  certain  documents. 
(Omitted  as  belonging  to  the  Criminal  Law.) 

S.  18.  Act  not  to  extend  to  Scotland.     (Omitted.) 

S.  19.  Meaning  of  the  word  "  Colony."  (Article  80, 
note  1.) 

5. 

28  &  29  Vict.  c.  18 :  "  The  Criminal  Procedure  Act,2 
1865  "  (9th  May,  1865,  10  sections).  This  Act  re-enacts 
ss.  22-27  of  the  Common  Law  Procedure  Act.  1S54, 
which  are  now  repealed  by  the  Statute  Law  Revision 
Act,  1892. 

S.  1.  Sects.  3-8  to  apply  to  all  courts  and  causes,  crim- 
inal as  well  as  civil. 

S.  2.  Summing  up  of  evidence  in  criminal  cases. 
(Omitted  as  being  procedure.) 

S.  3.  How  far  a  party  may  discredit  his  own  witnesses. 
(Articles  131,  133,  and  see  Note  XLVII.) 

S.  4.  Proof  of  contradictory  statements  by  a  witness 
under  cross-examination.     (Article  131.) 

S.  5.  Cross-examination  as  to  previous  statements  in 
writing.     (Article  132.) 

2  This  is  the  title  given  to  the  Act  by  the  Short  Titles  Act,  1896 ; 
it  seems  to  be  based  exclusively  on  sect.  2  of  the  Act. 


712  A  DIGEST  OF 


S.  6.  Proof  of  previous  conviction  of  a  witness  may  be 
given.     (Article  130  (1).) 

S.  7.  Attesting  witnesses  need  not  be  called  unlesa 
writing  requires  attestation  by  law.     (Article  69.) 

S.  8.  Comparison  of  disputed  handwriting.  (Articles 
49  and  52.) 

6. 

31  &  32  Vict.  c.  37  (25th  June,  1868,  6  sections)  :— 

S.  1.  Short  title.  "  The  Documentary  Evidence  Act," 
1868. 

S.  2.  Certain  documents  may  be  proved  in  particular 
ways.  (Article  83,  and  for  schedule  referred  to,  see  note 
to  the  article.) 

S.  3.  The  Act  to  be  in  force  in  the  colonies.  (Arti- 
cled.) 

S.  4.  Punishment  of  forgery.  (Omitted  as  forming 
part  of  the  Criminal  Law.) 

S.  5.  Interpretation  clauses  embodied  (where  neces- 
sary) in  Article  83. 

S.  6.  Act  to  be  cumulative  in  Common  Law.  (Implied 
in  Article  73.) 

7. 

32  &  33  Vict.  c.  68  (9th  August,  1869,  6  sections)  : — 
S.  1.  Repeals  part  of  14  &  15  Vict.  c.  99,  s.  4,  and  part 

of  16  &  17  Vict.  c.  83,  s.  2.     (The  effect  of  this  repeal  is. 
given  in  Article  109;  and  see  Note  XLI.) 

S.  2.  Parties  competent  in  actions  for  breach  of  prom- 
ise of  marriage,  but  must  be  corroborated  (See  Articles 
106  and  121.) 


THE  LAW  OF  EVIDENCE.  713 

S.  3.  Husbands  and  wives  competent  in  proceedings  in 
consequence  of  adultery,  but  not  to  be  compelled  to  answer 
certain  questions.     (Article  109.) 

S.  4.  Atheists  rendered  competent  witnesses.  (Re- 
pealed by  Oaths  Act,  1888.) 

S.  5.  Short  title:  "The  Evidence  further  Amendment 
Act,  1869." 

S.  6.  Act  does  not  extend  to  Scotland. 

8. 

48  &  49  Vict.  c.  69 :  "  The  Criminal  Law  Amendment 
Act,  1885  "  (20  sections). 

S.  4.  Unsworn  evidence  of  a  child  admitted  in  cases 
of  defilement  of  a  girl  under  thirteen;  but  corrobation 
needed.     (Article  123a.) 

9. 

51  &  52  Vict.  c.  46:  "The  Oaths  Act,  1888"  (24th 
Dec,  1888;  7  sections). 

S.  1.  A  person  objecting  to  be  sworn  may  make  an 
affirmation.     (Article  123.) 

S.  2.  Form  of  affirmation. 

S.  3.  Oath  valid,  though  no  religious  belief.  (Arti- 
cle 123.) 

S.  4.  Form  of  written  affirmation. 

S.  5.  Swearing  as  in  Scotland.     (Article  124.) 

S.  6.  Repeals. 

S.  7.  Short  title. 

10. 

57  &  58  Vict.  c.  41 :  "  The  Prevention  of  Cruelty  to 
Children  Act,"  1894  (28  sections). 


714  A  DIGEST  OF  THE  LAW  OF  EVIDENCE. 

S.  15.  Unsworn  evidence  of  a  child  admitted  in  casea 
of  cruelty  to  children,  etc.;  but  corroboration  needed. 
(Article  123a.) 

11. 

61  &  62  Vict.  c.  36:  "The  Criminal  Evidence  Act, 
1898  "  (7  sections). 

S.  1.  Person  charged  with  offence,  and  their  wife  or 
husband  competent  witness.     (Article  108.) 

S.  2.  When  such  person  is  called.  (Omitted  as  pro- 
cedure.) 

S.  3.  Right  of  reply.     (Omitted  as  procedure.) 

S.  4.  When  husband  or  wife  a  compellable  witness. 
(Article  108.) 

SS.  5,  6,  7.  Application  of  the  Article  to  Scotland, 
Ireland.     Courts-martial,  etc. 

These  are  the  only  Acts  which  deal  with  the  Law  of 
Evidence  as  I  have  defined  it.  It  will  be  observed  that 
they  relate  to  three  subjects  only  —  the  competency  of 
witnesses,  the  proof  of  certain  classes  of  documents,  and 
certain  details  in  the  practice  of  examining  witnesses. 
Thus,  when  the  Statute  Law  upon  the  subject  of  Evidence 
is  sifted  and  put  in  its  proper  place  as  part  of  the  general 
system,  it  appears  to  occupy  a  very  subordinate  position  in 
it.  The  eleven  statutes  above  mentioned  are  the  only  ones 
which  really  form  part  of  the  Law  of  Evidence,  and  their 
effect  is  fully  given  in  twenty-two3  articles  of  the  Digest, 
some  of  which  contain  other  matter  besides. 

3  49,  52,  58,  69,  79,  80,  81,  83,  84,  106,  108,  109,  120,  121,  123, 
123a,  124,  125,  130,  131,  132,  133. 


INDEX 


[The  numbers  refer  to  pages.] 
Abbreviations,  oral  evidence  to  interpret,  444,  451,  455 
Ability  to  do  an  act,  48 

Abortion,    dying   declarations,    156,    159,    160 
Absence    for   seven   years,   presumption    of    death,   497 
Absent    witness,   evidence   in   former  proceedings,    191-198 
Abstract  of  title,  213,  373 
Acceptor  of  bill  of  exchange,  estoppel,  516 
Accessory,   competency   of,   539 
Accidents,  res  gestae,  28 

similar,    65-76 

opinions  as  to  dangerous  character  of  a  place,  205 
Accomplices,    corroboration    required,    568-571 
Account,  books  of,   161-170 
Accuracy,  questions  to  test,  604-609 
Accused  as  witness,  538,  539 

Acquittal  of  one  joint  defendant  to  render  him  competent,  538 
Acts  showing  intention,  good  faith,  etc.,  76-86 

of    Parliament,    judicial    notice,    314 

of  conspirators,  (J57 

statements   accompanying,  20-29 
Additional  terms  of  a  contract,  oral  evidence  to  prove,  437 
Adjutant-general's  records,  204 
Administrators,  admissions  by,  123,  125,  128 
Admiralty,   conclusiveness    of   judgments.   234-238 
Admission  of  evidence  by  agreement,  593 

conditionally,  588 
Admissions,  101-137 

defined,  101,  668 

as  estoppels,  333 

by  agents  and  persons  jointly  interested,   113-131,  670 

by  a  party  to  the  suit,  106 

by  attorneys,  barristers,  etc..  119,  123,  127,  128.  130 

715 


716  INDEX. 

[The  numbers  refer  to  pages.] 
Admissions  —  Continued 
by  bankrupts,  132 

by  corporation  officers,   124,   126,   130 
by  executors  and  administrators,  123,  125,  128 
by  former  agents,  129 
by  guardian,  126 

by  husband  and  wife,  115,  124,  127,  131 
by  infants,   106 

by  insured  as  against  beneficiaries,  133 
by  intestate,  115 

by  joint  contractors,  118,  122,  127,  128 
by  joint  debtors,   131 
by  joint  maker  of  a  note,  126 
by  joint  owners,  130 
by  nominal  parties,  110,  111,  116 

by  parties  suing  in  representative  capacity,   110,  114,  116 
by  partners,  118,  122,  126,  128,  130 
by  person  referred  to  by  a  party,  134,  135,  671 
by  persons  having  a  substantial  interest,  110,  111,  114,  117 
by  principal  and  surety,  119,  123,  125,  131,  133 
by  privies  in  law,  blood,  or  estate,  110-118 
by  public  agents,  124 
by  relatives,  125 
by  strangers,  131-133,  670 
by  trustees,  125 
by  whom  made,  669 
dispensing  with  other  proof,  331-334 
implied  from  conduct,  104,  106 
implied  from  silence,  105,  106,  108,  109 
in  criminal  cases,  103 
in  pleadings,  106,  332,  333 
instances  of,   102 
in  Avriting,  109 

made  without  prejudice,  135-137,  671 
not  conclusive,  104 
of  deceased  person,   105,   107 
of  the  contents  of  a  document,  345-347 
self-serving,  106.  108,  109 
to  prove  marriage,  296,  297 


INDEX.  717 

[The  numbers  refer  to  page9.] 
Admissions  —  Continued 

to  show  agency,  124,  126,  130 

under  duress,  135-137 

weight  as  evidence,  100 

who  may  make  on  behalf  of  others,   110-118,  609 
Admitted  facts,  331-334 
Adultery,  admissions  of  paramour,   132 

ante-nuptial  incontinence,  72 

character  for  chastity,  30S 

circumstantial   evidence,  339 

competency  in  proceedings  relating  to,  540,  541 

competency  of  husband  and  wife,  538,  540,  541 

degree  of  proof,  470,  476 

marriage  not  provable  by  cohabitation  and  repute,  296,  297 

other  acts  of,  67 

other  acts  to  show  mutual  disposition,  83 

particeps  criminis,    140,  541 
Adverse  party,  leading  questions  on  direct  examination  of,  603 
Affairs  of  State,  communications  privileged,  546 
Affidavits  as  evidence,  580 
Affirmation  or  oath,  575 

Affirmative,  burden  on  one  supporting,  460-467 
Age,  declarations  as  to,  184,  187 
Agency,  admissions  to  prove,  124,  126,  130 

parol  evidence  of,  434,  438,  456 
Agents,  admissions  by,  118-131 

burden  of  proof  on,  490,  491 

estoppel  of,  517 

shown  to  be  such  by  other  acts,  85,  89-93 

statements  as  part  of  the  res  gestce,  55 
Agent's  report  to  principal  not  an  admission  in  favor  of  third  per- 
sons, 118,  124 
Agreements  in  writing,  parol  evidence  to  vary,  425-459 

parol  proof  of  agreements  collateral  to,  426.  432.  437 

partly  written  and  partly  oral.  454,  456 
Alibi,  burden  of  proving,  471 

Alienation  of  wife's  affections,  competency  of  husband  and  wife.  543 
Almanac,  215 

judicial  notice,  318,  326,  329 


718  INDEX. 

[The  numbers  refer  to  pages.] 
Alteration  of  writings  by  oral  evidence,  425-459 

degree  of  proof,  480 

expert  testimony,  291 
Alterations,  presumption  as  to,  419-424 
Ambiguities,  444-456 
Ancient  documents,  415-419 

facts,  hearsay  admitted,  100 

maps,  417,  418 
Annuity  tables,  213 

Answers,  unresponsive,  589,  590,  593,  595 
Anticipating  defense,  589 
Arbitrators,  privilege  of,  545 
Architect's  schedule  of  charges,  213 
Arrest,  evasion  of,  44 

Assault  and  battery,  character  for  chastity,  303 
Assayers  as  experts,  269 
Assessment  lists,  203,  386 

Assurance  of  counsel  that  evidence  is  relevant,  9,  593 
Atheists,  incompetency  of,  522,  527,  529,  531 

dying  declarations  of,  159 
Attendance  of  witnesses,  xxiv,  589 
Attested  documents,  351-361 

when  attesting  witness  need  not  be  called,  356-358 

when  attesting  witness  forgets  or  denies,  359,  360 

attestation  not  required  by  law,  360,  361 

burnt  or   canceled,  351 

proof  of,  by  admissions,  352-354,  356 

lost,  353,  356,  359 

proof  of  signature  of  maker,  354,  356 

handwriting  of  witness,  351,  355,  356 

collateral  to  the  suit  in  question,  357,  358 
Attesting  witnesses,  351-361,  682 

handwriting,  351,  355,  356 

blind,  351 

dead,  352,  354,  356 

beyond  reach  of  process,  352,  353,  354,  355 

not  found,  353,  355,  356 

one  witness  enough,  353,  356 

insane,  354,  356 


INDEX.  7  Id 

[The  numbers  refer  to  pages.] 
Attesting  —  Continued 

to  wills,  355,  358 

need  not  be  called  when  instrument  is  collateral  to  the  suit, 
357,  358 

opinion  as  to  sanity,  262,  263,  266 
Attorney  and  client,  burden  of  proof,  479,  489,  490 

privileged  communications,  550-558 

privilege  of  client,  557,  558 

when  relation  exists,  554,  558 
Attorneys,  admissions  by,  119,  123,  127,  128,  130 

competent  witnesses,  532 

privileged,  544-546 
Attorney's  fees,  customary  charges,  70 
Authentication  of  records,  205 
Authority  of  agent  to  make  admissions,  129 

Bad  faith,  acts  showing,  76-86 
Bailee,  estoppel  of,  517 
Bank-books,  170,  387 

compelling  production  of,  560 
Bankers'  books,  217-219 
Bankrupts,  admissions  by,  132 
Barrister,  unsworn  evidence  of,  579 

see  Attorneys 
Bastardy,  burden  of  proof,  467 

character  of  accused,  309 

corroboration  required,  567-571 

resemblances  of  child  to  father,  338,  340 
Belief  on  oath,  witness  unworthy  of.  622-629 
Benefits  and  damages,  opinion  as  to,  258,  260 
Best  evidence,  8,  11,  364 
Bias  as  affecting  competency,  520,  522 

questions  to  show,  604-607 

contradicting  answers  of  witness,  609-612 
Bible,  family  record,  206 

to  prove  pedigree,  188,  189,  191 
Bigamy,  competency  of  husband  or  wife,  538 

marriage  not  to  be  proved  by  mere  cohabitation  and  repute, 
296-298 


720  INDEX. 

[The  numbers  refer  to  pages.] 
Bill  of  exceptions,  589 

Bill  of  exchange,  estoppel  of  acceptor,  51G 
Bill  of  lading,  estoppel,  518 

parol  evidence  to  alter,  434,  443 
Bills  and  notes,  oral  evidence  to  alter  terms  of,  435,  442 

presumptions  and  burden  of  proof,  476 
Birth,  declarations  as  to,   184-191 

register  of,  202,  205 
Blood  relations,  declarations  as  to  pedigree,  185 
Boards  of  health,  records  of,  205,  208 
Bodily  feeling,  acts  showing,  76-86 
Bonds  thirty  years  old,  416,  418 
Books  of  account,  161-170 

time  of  entry,  163,  164,  169 

of  original  entry,  164,  166,  169 

authentication  of  entries,  164,   165,  170 

partnership  books,  165 

weather  records,  166 
•     church  records,  166 

physician's  record,  166 

of  a  corporation,  166 

cash  items,  167 

entries  by  interested  party,  168 

in  lead  pencil,  169 

of  banks,  170,  217-219,  387 

in  suits  between  third  parties,   170 

in  corroboration,  168 

reputation  for  inaccuracy  and  fraud,  302 
Books,  reading  from,  214 

of  law,  212,  214-216 

medical,  211,  214,  215 

scientific,  211,  214 
Boundaries,  declarations  as  to,  182-184 

in  deeds,  oral  evidence  to  alter,  440 

in  dispute,  36 
Breach  of  promise,  character  for  chastity,  313 

corroboration  required,  567-571 
Bribing  witnesses,  42,  44 


INDEX.  721 

[The  numbers  refer  to  pages.] 
Burden  of  proof,  460-492 

one  affirming  must  prove,  460-467 

presumption  of  innocence,  468-472 

on  whom  general  burden  lies,  472-480 

as  to  particular  facts,  481-486 

facts  to  be  proved  to  make  evidence  admissible,  487,  488 

when  parties  stand  in  a  fiduciary  relation,  488-492 

in  criminal   cases,   468-472 

voluntary  confessions,  144,  148,  149 

as  to  negligence,  462,  476,  485,  486 

as  to  contributory  negligence,  483,  485,  486 

as  to  preliminary  facts,  487,  488 

shifting  of,  472-481 
Burden  of  proving  time  of  death,  497 
Burials,  register  of,  202,  205,  208 
Business,  declarations  in  course  of,  161-170,  673 
By-laws,  certified  copies,  401 
Bystanders,  acts  and  words  of  as  res  geatce,  28 

Capacity  to  contract,  oral  evidence  as  to  laok  of,  425 

to  make  a  will,  declarations  of  testator,  178,  179 
Census  to  show  population,  200 
Certified  copies,  394-403 

no  better  evidence  than  the  originals,  387 

mode  of  authentication,  397,  401,  402 

authority  of  officer,  399,  401 

secondary  evidence,  361 
Changing  rules  of  evidence,  power  of  Legislature,  7 
Character,  301-313,  679 

generally  irrelevant,  301-305 

in  criminal  cases,  305-310,  629-631 

as  affecting  damages,  310-313 

as  to  chastity,  302-305,  308-310,  313,  629-631 

in  civil  proceedings,  301,  302,  305 

for  veracity,  302,  622-629 

in  rebuttal,  302,  304-310 

how  proved,  303-305,  308-312 

put  in  issue,  303 

in  divorce  suits,  304 

46 


722  INDEX. 

[The  numbers  refer  to  pages.] 
Character  —  Continued 

of  witnesses,  304,  604-G09 

proof  of  specific  acts,  303-305,  308-312 

of  accused  for  truthfulness,  309 

in  libel  and  slander,  311-313 

of  an  act,  other   acts  to  prove,  85 

see  Reputation 
Charge  of  the  court  to  disregard  evidence,  649-652 
Chastity,  character  of  prosecutrix  in  rape  cases,  629-631 
Charging  jury  as  to  admissions,  104 
Charts  and  plans,  209-217 
Chemical  experiments,  338 

Child,  unsworn  evidence  receivable  in  certain  cases,  576-578 
Church  records,  166 
Circumstances  surrounding  testator,  62 

surrounding  the  execution  of  a  document,  '444,  450,  453,  455 
Circumstantial  evidence,  7,  11 
City  council,  record  of,  205 

Civil  cases,  burden  of  proving  crime  in,  468-472 
Claim  on  estate  of  deceased  person,  corroboration,  571 
Classification  of  law,  xix 

Clergymen,  privileged  communications,  559,  698 
Co-conspirator  as  witness,  538 
Codification  of  the  law  of  evidence,  xxvi 
Cohabitation  evidence  of  marriage,  295 

Collateral  agreements,  oral  proof  of  to  add  to  a  writing,  426,  432,  437 
Collateral  attack  on  a  judgment,  249 
Collateral  matters,  contradicting  answers  of  witness  as  to,  611,  612 

judgment  not  conclusive,  231 
Collateral  proceeding,  proof  of  the  terms  of  a  document  in,  457-459 
Collusion  in  procuring  a  judgment,  246-251 
Colonial  acts  of  State,  407 

laws,  408 
Combinations  to  defraud,  34 

Comity  of  States,  conclusiveness  of  judgments.  254 
Commission,  evidence  taken  under,  xxiv,  580-585 

to  perpetuate  boundaries,  584 
Common  calamity,  death  in,  497-500 


INDEX.  723 

[The  numbers  refer  to  pages.] 
Common  law,  judicial  notice  of,  319 

oral  evidence  of,  349 
Communications  between  attorney  and  client,  550-556 

during  marriage,  541-544 

of  husband  and  wife  in  presence  of  a  third  person,  543 

on  affairs  of  State,  54G 

of  testator  to  his  attorney,  554 
Comparison  of  handwriting,  289-295 

letter- press  copies,  291 

photographic  copies,  291,  294 

writings  in  evidence  for  comparison  merely,  290-293 

standard  of  comparison,  292-295 

on  question  of  forgery,  294 
Competency  of  witnesses,  520,  695 

of  atheists,  522,  527,  529,  531 

of  convicts,  522,  527,  529,  531 

of  accomplices,  522 

of  husband  and  wife,  524,  533 

of  adverse  party,  526 

of  party  to  a  transaction  with  one  deceased,  528-532 

of  drunken  persons,  532 

of  attorneys,  532 

of  perjurers,  531 

in  adultery  proceedings,  540,  541 

in  criminal  cases,  533-540,  696 

of  persons  jointly  indicted,  533 

of  jurors,  548-550 
Complaints  as  evidence,  49-58,  658 

terms  of,  irrelevant,  52 
Compromise,  offers  of,  135-137 
Conclusions  of  witness  not  admissible,  262,  264 
Conclusive  judgments,  220-234 
Conclusive  proof  denned,  4 
Conclusiveness  of  admissions,  104 
Condemnation  proceedings,  opinion  evidence,  260 
Condition  precedent  to  a  writing's  taking  effect,  oral  proof  of,  426, 

429,  433,  438,  443 
Conditional  delivery,  oral  evidence  to  prove,  430 


724  INDEX. 

[The  numbers  refer  to  pages.] 
Conduct,  admissions  by,  106 

estoppel  by,  xxv,  510-514,  693 

subsequent  to  an  act,  41-48 

while  making  declaration,  56 
Confessions,  138-154 

defined,  138-141 

admissibility  a  question  for  the  judge,  146,  148-150 

after  influence  of  inducement  is  removed,  147-149 

burden  of  proving  voluntary,  144,  148,  149,  488 

by  conduct,  140 

by  infants,  148 

by  mere  advice,  146 

by  silence,  139-141 

caused  by  inducement,  threat,  or  promise,  141-150 

credibility  for  the  jury,  148 

distinguished  from  admissions,  139 

induced  by  hope,  148 

in  letter,  140 

involuntary,  141-150 

obtained  by  religious  exhortation,  146 

obtained  by  detectives,   154 

on  improper  compulsion,   150-152 

on  oath,  150-152,  672 

to  officers,  149 

under  promise   of   secrecy,   152-154 

under  threats,  671 

voluntary,   138 

when  drunk,  152-154 

while  in  custody,  147 
Confidential  communications,  privilege  of  client,  557,  558 
Consciousness  of  impending  death,  157,  158,  160 
Consideration,  oral  evidence  as  to  want  of,  426,  434,  438,  440 
Conspiracy  defined,  32 

to  counterfeit,  32 

to  commit  fraud,  33,  34 

preliminary  proof  of,  32,  33 

civil  and  criminal  cases,  31,  34 

proof  of  other  acts  to  show  purpose,  82 
Conspirators,  acts  of,  29-34,  657 

civil  and  criminal  cases,  31,  34 


INDEX.  725 

[The  numbers  refer  to  pages.] 
Construction  of  documents,  see  Interpretation 
Contested  elections,  privilege  as  to  criminating  questions,  566 
Contracts,  evidence  as  to  terms  of,  425-459,  685 
Contradicting  answers  to  questions  testing  veracity,  609-612 

one's  own  pleadings,  10 

one's  own  witness  by  proof  of  inconsistent  statements,  615-619 

prosecutrix  in  rape  cases  as  to  chastity,  629-631 
Contradictory  statements  of  witness  in  writing,  620,  621 
Contributory  negligence,  483,  485,  486 
Conversations,  admissions  in,  105 

by  telephone  in  evidence,  337 

of  husband  and  wife,  542 
Conveyances,  oral  testimony  to  alter  terms  of,  425-459 
Conviction  of  crime  to  shake  credit  of  a  witness,  604,  606,  607 

contradicting  answers  of  witness,  609-612 
Copies  as  secondary  evidence,  361-364 

correctness  of,  362 

equivalent  to  exemplifications,  394 
Corporation,  books  of,  166,  202,  205,  206,  208 

burden  of  proof  on  director  of,  489 
Corporation  officers,  admissions  by,  124,  126,  130 
Corporation  records,  386 

certified  copies,  397 
Corpus  delicti,  proof  of,  139,  140,  141 
Corroboration,  when  required,  567-571 

of  young  child  required  to  convict,  577 
Corroborative  evidence,  11 
Counterfeiters,  in  conspiracy,  32 
Counterfeiting,  expert  evidence,  281 
Counterfeit  money,  other  utterances  of,  77-86 
Counterparts,  344,  346,  347 

when  secondary  evidence,  361 
Course  of  business,  89-93,  665 

declarations  made  in,  161-170 

time  when  made,  163,  164,  169 
Court  of  general  jurisdiction,  what  is,  247 
Court  records,  exemplifications,  393 

certified  copies,  397,  401 
Credible  witness,  9 


726  INDEX. 

[The  numbers  refer  to  pages.] 
Credibility  on  oath,  62G-628 
Credibility,  questions  to  test,  604-009 
Cries  of  mob  as  explanatory,  59 
Crime,  disqualification  of  witness  for,  522,  527,  529,  531 

proving  commission  of,  468-472 
Crime  and  fraud,  communications  not  privileged,  551-556 
Crimes,  similar,  65-76 
Criminal  cases,  admissions  in,  103 

burden  of  proof,  468-472 

competency  of  witnesses,  533-540,  696 

new  trial,  649-652 
Criminal  conversation,  competency  of  husband  and  wife,  543 

intercourse  prior  to  marriage,  72 

marriage  not  provable  by  cohabitation  and  repute,  296-298 
Criminal  proceedings,  evidence  of  character,  305-310 
Criminating  documents,  compelling  production  of,  559-561 
Criminating  questions,  562-567 
Cross-examination,  5S5-609 

as  to  character,  303,  304 

as  to  previous  statements  in  writing,  620,  621 

case  not  to  be  substantively  established  on,  599 

discretion  of  judge,  609 

former  inconsistent  statements,  612-619 

irrelevant  questions  permitted,  20 

leading  questions,  600-603 

limits  of,  703 

must  be  germane,  597,  598 

of  impeaching  witnesses,  622-629 

of  prosecutrix  in  rape  cases,  629-631 

questions  lawful  on,  604-609 

Teasons  for  not  believing  a  witness  on  oath,  622-629 

to  show  bias,  accuracy,  etc.,  599 

to  what  matters  it  must  be  directed,  596-600 
Cumulative  evidence.  7,  12 
Curing  error,  649-652 
Custom  of  doing  things  as  evidence  of  a  special  act,  74 

oral  proof  of,  to  add  to  or  alter  a  writing,  426,  430,  434,  439 
Customs,  38-40 

judicial  notice,  315,  320.  328.  329 

public  and  general,  180-184 


INDEX.  727 

[The  numbers  refer  to  pages.] 
Damages,  character  as  affecting,  310-313 

opinion  as  to  amount,  258,  200,  203,  266 
Date  of  document,  oral  evidence  to  alter,  426,  430,  443 

presumption  as  to,  410-412 
Dates,  refreshing  memory,  637 

Deaf  and  dumb  witness  may  be  competent,  521,  522 
Death,  declarations  as  to,  184-191 

impending,  consciousness  of,  157,  158,  160 

in  common  disaster,  497-500 

presumed  after  seven  years,  497 

registers  of,  202,  205,  206 
Deceased  persons,  declarations  by,  154-198 

claims  against,  571 
Deceased  witness,  evidence  in  former  proceedings,  191-198 
Deception,  confessions  obtained  by,  152-154 
Declarant  defined,  154 
Declaration  defined,  154 
Declarations  accompanying  acts,  as  res  gestce,  20-29 

affecting  title,  36 

against  interest,  170-176,  673 

as  to  boundaries,   182-184 

as  to  cause  of  death,   155-161 

as  to  pedigree,  184-191,  676 

as  to  public  and  general  rights,  180-184,  674 

by  deceased  persons,  154-198 

impeaching  credit  of  declarant,  631,  632 

by  insane  persons,  154,  155 

by  persons  absent,  155 

by  testators  as  to  contents  of  will,  177-179 

dying,  155-161 

in  course  of  business  or  professional  duty,  161-170,  673 

in  former  proceedings,  191-198 

in  one's  own  favor,  106,  108,  109 

of  intention  accompanying  an  act,  51,  54,  56,  57 

showing  malice,  43,  46 

see  also  Statements 
Decoy  letters,  14 
Deeds,  alterations  in,  419-423 

certified  copies,  398-403 


728  INDEX. 

[The  numbers  refer  to  pages.] 
Deeds  —  Continued 

exemplified  copies,  393 

existence  presumed,  504 

oral  testimony  to  vary  terms  of,  425-459 

originals  as  evidence,  387 

presumption  as  to  date  of,  412 
as  to  order  of  execution,  411 
as  to  sealing  and  delivery,  413-415 

proof  of,  348 

recitals  in,  to  prove  pedigree,  191 

thirty  years  old,  416 

to  show  public  and  general  rights,  180-184 
Defamation,  evidence  of  reputation,  311-313 
Default,  judgment  by,  230,  232 
Defendant  in  criminal  case  as  witness,  538,  539 

when  burden  of  proof  is  on,  462,  465,  467,  484,  486 
Definition  of  terms,  3-12,  653 
Degree  of  proof  necessary,  463-465,  475-477,  480 
Degrees  of  secondary  evidence,  364,  373,  378 
Delivery  of  deeds,  presumption  as  to,  413-415 
Demonstrative  evidence,  336-342 
Demurrer,  judgment  on,  232 

to  evidence,  588 
Depositions,  xxiv,  580-585,  641-648 

under  Merchant  Shipping  Act,  647 

of  children,  645 

under  Foreign  Jurisdiction  Act,  644 

under  30  &  31  Vict.,  chap.  35,  §§6,  643 

before  magistrates,  641 

dying  declarations  in  form  of,  155 

impeaching  credit  of  deponent,  631,  632 
Desertion,  competency  of  husband  or  wife,  539 
Detectives  competent,  522 

confessions  obtained  by,  154 

not  accomplices,  569 
Diplomatic  correspondence,  recitals  in,  199 
Discretion  of  court  as  to  cross-examination,  609 
Disgracing  questions,  604.  605,  607 
Disqualification  of  surviving  party  removed,  533 


INDEX.  729 

[The  numbers  refer  to  pages.] 
Divorce,  antenuptial  incontinence,  72 

burden  of  proving  adultery,  470,  476 

corroboration  necessary,  569-571 

evidence  of  character,  304 

judgment  conclusive  proof,  221-223 
Doctor's  fees,  customary  charges,  70 
Doctors,  privileged  communications,  559 
Document  defined,  3 
Documentary  evidence,  343-383 

primary  evidence,  343-351 

counterparts,  344,  346,  347 

inspection  of,  339,  341 
Documents,  bankers'  books,  366 

burnt  or  canceled,  351,  372 

collaterally  in  issue,  oral  proof,  374,  375,  457-459 

contents  proved  by  admissions,  345,  347,  352-354,  356 

destroyed,  365,  368,  372,  376,  377 

diligent  search  for,  368,  371,  375-377 

exclusive  evidence,  685 

illegible,  376 

in  hands  of  adverse  party,  365,  367,  372,  374,  376,  378,  381 

in  hands  of  a  stranger,  365,  369,  378,  379,  381,  382 

in  several  parts,  344,  346 

intentionally  destroyed,  368,  374 

interpretation  of,  444-456 

lost,  353,  365,  368,  374-377 

notice  to  produce,  369 

not  movable,  366,  369,  378 

out  of  the  jurisdiction,  369,  378 

presumptions  as  to,  410-424 

proof  of  contents  of,  425-459 

public,  366,  373,  384-409 

required  to  be  attested,  351-361 

secondary  evidence  of  contents,  361-383 

thirty  years  old,  415—419 

too  numerous  to  produce.  366,  369.  373.  378 

see  Secondary  Evidence;  Presumptions 
Domicile,  statements  of  intention,  51,  54,  57 
Drunk,  confessions  when,  152-154 


730  INDEX. 

[The  numbers  refer  to  pages.] 
Drunken  persons,  competency,  532 
Duplicates,  primary  evidence,  344,  346,  347 
Duress,  admissions  under,  135-137 
Dying  declarations,  155-161,  672 

in  civil  cases,  158,  159 

by  atheists,  159 

to  prove  abortion,  156,  159 

province  of  court  and  jury,  160 

constitutionality  of  rule,  158,  161 

written  and  oral,  158,  160 

burden  of  proof,  487 

impeaching  credit  of  declarant,  632 

Eavesdroppers    overhearing    conversations    between    attorney    and 

client,  554,  558 
Ejectment,  conclusiveness  of  judgment,  233 
Election  contests,  how  evidence  is  taken,  594 

privilege  as  to  criminating  questions,  566 
Embezzlement,  extravagance  relevant  to  prove,  60 
Engineers,  expert  evidence,  273,  276 

Entries  made  in  public  records  in  performance  of  duty,  200-208 
Equally  divided  court,  8 
Equity,  parol  evidence  rule  in,  435 
Error  in  admitting  or  rejecting  evidence,  649-652 
Estoppel  by  conduct,  xxv,  510-514,  693 

of  one  who  carelessly  draws  a  check,  512 

of  tenant  and  licensee,  514 

of  acceptor  of  bill  of  exchange,  516 

of  bailee  and  agent,  517 

of  the  signer  of  a  bill  of  lading,  518 

judgment  as  an,  238-240 
Evading  arrest,  44 
Evasive  testimony,  45 
Evidence,  defined,  4,  5 

relevant,  5-20 

moral,  7 

cumulative,  7,  12 

circumstantial,  7,  11 

changing  rules  of,  7 


1X1JEX.  731 

[The  numbers  refer  to  pages.] 

Evidence  —  Continued 

material,  7 

irrelevant,  8,  Id,  17 

best,  8,  11 

rebutting,  8,  11 

affirmative  and  negative,  8,  11 

corroborative,  11 

real,  12 

remote,  14,  10,  17 

explanatory,  15 

negative,  8,  11 

to  be  on  oath,  575 

improperly  obtained,  338 

in  former  proceedings,  191-198,  67G 

opportunity  to  cross-examine,  192,  194,  197 

identity  of  issues,  192,  194,  196,  197 

identity  of  parties,  192,  194,  196,  197 

in  criminal  cases,  192 

by  whom  proved,  194-198 

judge's  notes,  195,  198 

stenographer's  notes,  195 

preliminary  hearings,  193,  198 

how  proved,  195-198 

before  arbitrators,  196 

attorney's  notes,  194,  196 
Examination  of  witnesses,  703 

by  the  court,  589 
Examination  in  chief,  585-595 

discretion  as  to  leading  questions,  601-003 

hostile  witness,  613.  619 
Examined  copies.  3SS-390,  684 

method  of  comparison.  389 

secondary  evidence,  361 
Exclamations  of  pain,  53,  55,  56 
Excluding  witnesses  from  the  courtroom,  592 
Exclusion  of  oral  by  documentary  evidence.  425-459 
Executors  and  administrators,  admissions  by,  123,  125,  128 
Exemplifications,  391-393,  684 

copies  equivalent  to,  394 

letters  of  administration,  392 


732  INDEX. 

[The  numbers  refer  to  pages.] 
Exemplifications  —  Continued 

foreign  statutes,  392 

colonial  deeds,  392 

deeds,  393 

court  records,  393 

secondary  evidence,  361 
Exhibiting  objects  to  jury,  336-340,  342 
Experiments,  9,  12,  338 

as  grounds  of  an  opinion,  299 
Expert  opinion,  267-289 

on  points  of  science  or  art,  267-284 

as  to  handwriting,  267,  268,  270,  277,  281 

as  to  foreign  law,  267,  269,  277,  279 

as  to  symptoms  of  poisoning,  268 

as  to  mental  unsoundness,  268 

subjects  of,  269,  276,  278,  280 

form  of  questions,  271,  273,  278,  279,  282 

as  to  value  of  property  and  services,  275 

works  of  science,  276 

technical  terms,  280 

insurance  risk,  280 

forgery  and  counterfeiting,  281,  287 

based  on  testimony  of  others,  282 
Experts,  defined,  267 

qualification  of,  267,  270,  271,  272,  277,  282 

assayers,  269 

photographers,  269 

surveyors,  269,  276 

may  define  terms  of  art,  272 

lawyers,  272,  279,  280 

physicians,  272,  277,  279,  281 

engineers,  273,  276 

railway,  273 

mechanical,  274 

may  refresh  memory,  632 
Explanatory  evidence,  15 

facts,  58-64 

maps,  62 

statements,  41—48 
Exposure  to  penalty,  compelling  production  of  documents,  559-561 


INDEX.  733 

[The  numbers  refer  to  pages.] 
Fabrication  of  evidence,  44,  48 
Fact  denned,  3 
Facts  in  issue,  xx,  4,  13,  229,  231,  233 

relevant  to  the  issue,  xx,  13 

necessary  to  explain  or  introduce  relevant  facts,  58-64 

showing  system,  86-89 

to  be  proved  to  make  evidence  admissible,  487,  488 

which  might  have  been  litigated,  judgments  conclusive,  226,  227, 
231,  232 

discovered  through  confessions  improperly  obtained,  143,  147,  150 
Failure  to  call  witnesses,  45,  48 

to  testify,  45,  46,  48 
False  pretenses,  other  offenses  relevant,  76-"66 
False  testimony,  45,  48 

Family  Bible  to  prove  pedigree,  188,  189,  191 
Family  record,  206 

Federal  courts,  competency  of  husband  or  wife,  538 
Federal  statutes,  certified  copies,  396 
Fees  of  witnesses,  589 

Fiduciary  relation,  burden  of  proof,  479,  488^192 
Field  notes,  213 

Fixing  time  or  place  of  an  occurrence,  58-64 
Flight  as  evidence,  44,  48 
Foreign  acts  of  State,  407 

Foreign  attachment,  judgments  not  conclusive,  238 
Foreign  expressions,  oral  evidence  to  interpret,  444 
Foreign  law,  opinion  of  experts,  267,  269,  277,  279 
Foreign  records,  206,  385 

exemplifications,  391 
Forfeiture,  privilege  of  witness,  562-567 
Forged  instruments,  other  utterances  to  prove  intent,  82,  83 
Forgery,  confession  of  forger,  141 

expert  evidence,  281,  287 

comparison  of  handwriting,  294 
Forgetful  witness,  194 
Form  of  oaths,  579 

of  questions  to  a  witness,  587 
Former  proceedings,  evidence  given  in,  191-198 

see  Evidence 


734  INDEX. 

|_The  numbers  refer  to  pages.] 
Foundation  for  proof  of  previous  inconsistent  statements,  614-619 
Fraud  and  crime,  communications  not  privileged,  551-556 
Fraud,  burden  of  proof,  462,  483 

collusion,  etc.,  in  procuring  a  judgment,  246-251 

estoppel,  511 

latitude  in  admitting  evidence  of,  11,  81 

oral  evidence  of,  425,  429,  435,  438,  441 
Fraudulent  intent,  other  acts  to  prove,  76-86 

Gambling  cases,  privilege  as  to  criminating  questions,  565 
General  burden  of  proof,  472-480 

public  history,  209-217 

records  of  the  realm,  390 

reputation,  303-305,  308-312 

rights,  declarations  as  to,  180-184 
Genuineness  of  documents,  58 

Geographical  facts,  judicial  notice,  316,  317,  320,  323 
Good  faith,  acts  showing,  76-86 

burden  of  proving,  488-492 
Governor's  proclamation,  203 
Grand  jurors,  competency  of,  548-550 
Great  seal,  judicial  notice,  316,  318 
Guardian,  admissions  by,  126 
Guardian  and  ward,  burden  of  proof,  490,  491 
Guess  of  witness  not  admissible,  262 
Guilty  knowledge,  other  offenses  to  prove,  76-86 

Habits,  as  affecting  probable  future  earnings,  25 
Handwriting,  opinion  of  experts,  267,  268,  270,  277,  281 

when  opinions  are  deemed  relevant,  285-289 

comparison  of,  289-295 

when  witness  is  competent,  285-289 

form  of  questions,  287 

preliminary  proof  of  competency  of  witness,  289 

photographic  copies,  291,  294,  295 

letter  press  copies,  291,  295 

refreshing  memory,  635,  636 
Harmless  error.  649-652 
Health,  presumption  of,  483 


INDEX.  735 

[.The  numbers  refer  to  pages.] 
Health  officer's  records,  205,  208 
Hearsay  irrelevant,  94-100,  665 

when  relevant,  101 

instances,  95-100 

not  evidence,  xvii 
Highway  injuries,  condition  elsewhere,  70,  71 
Highways,  indictments  for  nonrepair  of,  536 
History,  works  of,  209-217 
Holding  office,  acts  as  officer,  89-93 

proved  by  action  of  officer,  427,  435 
Homicide,  dying  declarations,  155-161 
Hope  of  recovery,  dying  declarations.  155-161 
Hope  or  fear,  confessions  induced  by,  141-150 
Hostile  witness,  leading  questions,  601,  603 

previous  inconsistent  statements,  613,  619.  628 
Husband  and  wife,  admissions  by,  115,  124,  127,  131 

as  witnesses  on  question  of  legitimacy,  493 

burden  of  proof,  490,  492 

competency  in  adultery  proceedings,  540,  541 

competency  in  criminal  cases,  533-540 

criminating  questions,  564-566 

privileged  communications,  541-544 
Hypothetical  questions,  273,  278,  279,  282 

Identity  of  person  or  thing,  58-64 

of  persons  and  things  mentioned  in  a  document,  444,  449,  452, 
453,  455 

opinion  as  to,  261 
Illegible  documents,  oral  evidence  to  interpret,  444 
Illness  of  witness,  evidence  in  former  proceedings,  191-198 
Immaterial  alterations,  420,  421,  424 
Impeaching  credit  of  witness,  622-629 

one's  own  witness  on  cross-examination.  614-619 

by  showing  witness  to  be  unworthy  of  belief  on  oath,  622-629 
Implied  admissions.  104-109 
Impotency,  competency  of  wife.  542 

to  rebut  presumption  of  legitimacy,  493-497 
Impression  of  witness,  336.  337,  340.  341 
Improper  admission  and  rejection  of  evidence,  649-652 


736  INDEX. 

[The  numbers  refer  to  pages.] 
Incest,  character  for  chastity,  304 

competency  of  husband  or  wife,  538 
Incompetency  of  witness,  520 

of  workmen,  73 
Incomplete  writings,  oral  testimony  to  add  to,  429,  433,  443 
Inconsistent  statements,  612-619,  705 
Indecency  of  evidence,  656 

Independent  recollection  of  witness,  refreshing  memory,  632-837 
Indorsements  of  payment  on  notes  as  declarations  against  interest, 

171,  175,  176 
Inducements,  confessions  obtained  by,  141-150 
Infancy,  burden  of  proving,  466 
Infants,  admissions  by,  106 
Information  as  to  commission  of  offenses,  547 
Injuries,  declarations  as  res  gestce,  23-29 

exhibition  to  jury,  338,  339,  342 
Innocence,  presumption  of,  468-472,  693 
Insane  persons,  declarations  by,  154 
Insane  witness,  evidence  in  former  proceedings,  191-198 
Insanity,  burden  of  proof,  462,  470,  471,  477,  482,  483,  486 

in  the  family,  74 
Insured  buildings,  other  fires,  72 
Inspection  of  documents,  339,  341 
Instruments  collaterally  in  issue,  oral  proof,  457^459 

see  Documents 
Insurance  policy,  oral  testimony  to  alter,  427,  436 

proof  of,  348 

premiums  in  case  of  absence  unheard  from,  500 
Intention,  acts  showing,  76-86 

evidence  of,  10 

in  executing  a  document,  parol  evidence  of,  449,  454 

of  testator,  declarations,  179 

statement  of,  43,  46 
Interest,  declarations  against,  170-176 

matters  of  public  and  general,  180-184 
Interest  of  witness  no  disqualification,  521,  527,  529,  531 

questions  to  show,  604-607 

contradicting  answers  of  witness,  609-612 
Interlocutory  order  not  conclusive,  230,  232 


INDEX.  737 

[The  numbers  refer  to  pages.] 
Interpretation  of  documents,  444-450,  0S7 
Intoxication,  previous  occasions,  72 
Introductory  facts,  58-64 
Involuntary  confessions,  141-150 
Irish  statutes,  404 

Irrelevant  and  immaterial  questions,  contradicting  answers  of  wit- 
ness, 612,  616,  618 
Irrelevant  testimony,  8 

illustrations,  16 

contradicting  it,  17 
Irresponsive  answers,  589,  590,  593,  595 

Jewish  oath,  580 

Joint  contractors,  admissions  by,  118,  122,  127,  128 

debtors,  admissions  by,  131 

defendants,  admissions  by,  110,  116 

maker  of  note,  admissions  by,  126 

owners,  admissions  by,  130 
Journals  of  Parliament,  404 
Judge  denned,  3 

judgments  conclusive  in  favor  of,  244-245 

powers  of,  as  to  bankers'  books,  219 
Judges  privileged,  544-546,  696 
Judge's  notes  of  evidence,  229 
Judgments,  220-255 

denned,  220 

against  joint  contractors,  242 

against  joint  tort-feasors,  242 

as  evidence,  677 

as  part  of  a  chain  of  title,  36,  37 

by  default  conclusive,  230,  232 

certified  transcripts,  398,  401.  402 

conclusive  as  between  parties  and  privies,  224-234 

conclusive  in  favor  of  judge,  244,  245 

conclusive  proof  of  their  legal  effect.  220-224 

effect  when  given  in  evidence,  238-240 

foreign,  251-255,  407 

fraud,  collusion,  and  want  of  jurisdiction,  246-2.")  1 

how  proved,  349 

47 


738  INDEX. 

[The  numbers  refer  to  pages.] 
Judgments  —  Continued 

in  admiralty  cases,  234-238 

in  rem  conclusive.,  236 

irrelevant  between  strangers,  234-238,  240-244 

not  pleaded  as  an  estoppel,  238-240 

of  Federal  courts.,  251-255 

of  probate  court,  222-224 

of  sister  States,  251-255 
Judicial  notice,  xxi,  314-331,  680 

acts  of  Congress,  319 

acts  of  Parliament,  314 

almanac,  318,  326,  329 

common  law,  319,  327 

course  of  nature,  316,  325 

facts  of  which  courts  take,  314-330 

general  customs,  315,  328,  329 

geographical  facts,  316,  317,  320,  323-325 

matters  of  public  history,  322    # 

matters  of  general  knowledge,  326 

meaning  of  words,  316,  325 

other  States  and  nations,  315 

political  divisions,  316,  317,  320,  323 

procedure  of  courts,  315 

proof  of  facts  judicially  noticed,  330,  331 

public  facts,  320,  321 

qualities  of  matter,  321 

seals,  316,  317,  328 

statutes,  319,  327 

terms  of  court,  322 

treaties,  318 

unwritten  laws,  314 
Jurisdiction,  lack  of,  in  procuring  judgment,  246-251 

of  inferior  courts,  247 
Jurors,  competency  of,  548-550 
Justice  docket,  205 

transcript,  205,  400 

Knowledge,  similar  acts  to  show  guilty,  76-86 


1NDLX.  739 

[The  numbers  refer  to  pages.] 
Land,  opinion  as  to  value,  200,  275 
Land  office  papers  to  prove  title,  37 
Land  records,  204,  387,  402 
Latent  ambiguity,  452,  454,  456 

declarations  of  testator,  178 
Law  books,  212,  214,  215,  216 
Law  reports,  203 
Laws,  judicial  notice,  314,  319 

of  other  States,  opinion  evidence,  267,  269,  277,  279 
Lawyers,  expert  evidence,  272,  279,  280 

see  Attorneys 
Laying  foundation  for  proof  of  inconsistent  statements,  615-619 
Leading  questions,  600-603 

to  refresh  memory,  635 
Leases,  proof  of,  348 
L«gal  conclusions,  264 

Legal  proceedings,  regularity  presumed,  504-510 
Legislative  investigations,  privilege  as  to  criminating  question^  565 

journals,  200,  203 
Legitimacy,  declarations  to  prove,  189,   190 

presumption  of,  493 
Letter  press  copies,  secondary  evidence,  346,  363,  372 

of  handwriting  for  comparison,  291 
Letters  as  hearsay,  100 

of  administration,  exemplifications,  392 

of  mother  as  part  of  the  res  gestae  to  show  illegitimacy,  494 

to  contradict  a  witness,  620,  621 
Libel  and  slander,  proof  of  character  to  mitigate  damages,  311-313 

other  offenses  to  show  malice,  76-86 

similar  publications,  72 
Licensee,  estoppel  of,  514,  517 
Life  tables,  213,  214,  216 
Limitations,  see  Statute  of  Limitations 
Limiting  number  of  impeaching  witnesses,  625 
Liquidated  damages,  oral  evidence  to  explain,  452 
Lithographed  copies,  when  primary  evidence,  344,  346 
Local  expressions,  oral  evidence  to  interpret,  444 
Lost  instruments,  353,  365,  368,  374-377 

preliminary  proof  of  loss,  369,  370,  376 


740  INDEX. 

[The  numbers  refer  to  pages.] 
Lost  —  Continued 

affidavit  of  loss,  370 

diligent  search  for,  368,  371,  375-377 

wills,  177-179,  372 

burden  of  proof,  487,  488 
Lost  will,  declarations  of  testator  as  to  contents,  177-179 
Lucid  interval,  burden  of  proof,  477 

Mailing  letter,  usual  course  of  business,  89-93 
Malice,  declarations  showing,  43,  46 
Malicious  prosecution,  burden  of  proof,  481 

character  of  plaintiff,  302,  303,  305,  313 

to  show  want  of  probable  cause,  304 

judgment  of  acquittal  conclusive,  221,  232 
Malpractice,  exhibition  of  injuries,  342 
Manslaughter,  dying  declarations,  155-161 
Maps,  209-217 

certified  copies,  402 

explanatory,  62 

thirty  years  old,  417,  418 

to  prove  public  and  general  rights,  181,  182,  184 
Marriage,  character  for  chastity,  304 

communications  during,  541-544 

declarations  as  to,  184-191 

opinion  as  to  existence  of,  295-298 

record  of,  298 
Marriage  certificate,  202,  205 
Marriages,  register  of,  202,  205 
Material  alterations,  420,  422,  423 
Material  evidence  defined,  7 
Meaning  of  words  in  documents,  445,  449,  452,  455 

judicial  notice,  316,  325 
Mechanical  experts,  274 
Medical  books,  211,  214,  215 
Medical  experts,  212,  272,  277,  279,  281 
Medical  men,  privileged  communications,  559 
Memoranda  to  refresh  memory,  632-638 

right  of  adverse  party  to  see,  638 


INDEX.  741 

[The  numbers  refer  to  pages.] 
Mental  capacity,  burden  of  proof,  4G2,  466,  467,  483,  484,  486 

opinion  as  to,  263,  265,  270 
Mental  condition,  how  proved,  5 

latitude  in  proving,  11 
Mere  error  or  irregularity,  251 
Merger  of  oral  contract  in  written,  437 
Ministers,  privileged  communications,  559 
Minutes  of  public  meetings,  205 

of  a  board,  207 
Misprision  of  treason,  number  of  witnesses,  572-574 
Mistake,  degree  of  proof  required,  480 

of  fact  or  law,  oral  evidence  of,  426,  428,  429,  435,  438,  441 
Mitigation  of  damages,  proof  of  reputation,  310-313 
Models,  use  of,  before  the  jury,  338 
Moral  evidence  defined,  7 
Mortgages,  certified  copies,  399 

oral  evidence  to  prove  deeds  to  be,  435,  441 
Mortuary  tables,  214,  216 
Motion  to  strike  out,  588,  593,  595 
Motive,  41-48 
Murder,  corroboration  required,  573 

dying  declarations,  155-161 

evidence  of  good  character,  308 

character  of  deceased,  309,  310 

exhuming  body  to  get  evidence,  341 

Narrative  of  past  events,  51,  57,  58 

Necessary  witnesses,  impeaching  and  contradicting,  614,  619,  628 

Negative,  when  burden  of  proof  is  on,  464 

Negative  evidence,  11 

Negligence,  burden  of  proof,  462,  476,  485,  486 

res  ipsa  loquitur,  476-479,  485 

contributory,  483,  485,  486 

prior  negligence,  71,  72 

repairs  as  evidence  of,  44,  47,  48 
Newspaper  quotations  hearsay,  97,  98 
Newspapers,  reading  from,  214 
New  trial,  substantial  wrong,  649-652 
Nominal  parties  to  a  suit,  admissions  by,  110-118 


742  INDEX. 

[The  numbers  refer  to  pages.] 
Nonaccess,  how  proved,  493,  495,  496 
Nonexpert  opinion,  257,  259,  261,  265 

as  to  sanity,  258,  263 

as  to  testator's  capacity,  259 

as  to  custom,  260 

as  to  speed  of  a  train,  261 

grounds  of  opinion  must  be  given,  300 
Nonproduction  of  evidence,  45,  48 
Nonrepair  of  public  highways,  indictments  for,  536 
Nonsuit  not  conclusive,  227 
Nonsupport,  competency  of  husband  or  wife,  539 
Notary,  communications  not  privileged,  554 
Notary's  certificate,  206,  208 

register,  207,  208 

records,  certified  copies,  400 
Notice  to  produce,  379-383,  683 

document  itself  a  notice,  380-383 

original  in  court,  380,  381 

time  of,  382 

document  must  be  introduced  in  evidence,  638-640 

party   refusing   to   produce  document   barred  from   introducing 
it,  640 
Notoriety,  hearsay  admissible,  98 
Nuisances  to  highways,  rivers,  bridges,  536 
Number  of  witnesses,  572-574 
Numerous  items,  leading  questions,  601 

Oath,  confessions  on,  150-152 

form  of,  579 

by  whom  administered,  579 

by  others  than  Christians,  580 
Oath  or  affirmation,  575 
Objections  to  evidence,  588-595 

to  be  specific,  588 

time  to  be  made,  590,  592 

to  evidence  en  masse,  592 

for  incompetency,  527 
Objects  shown  to  jury,  336-340 
Obsolete  expressions,  oral  evidence  to  interpret,  444 


INDEX.  743 

[The  numbers  refer  to  pages.] 
Offenses    against    women,    character    of    prosecutrix    for    chastity, 
629-631 

character  of  defendant,  631 
Offer  of  evidence,  588,  595 

for  a  special  purpose,  9 
Offers  of  compromise,  135-137 

Office  business  of  attorney,  privileged  communications,  555 
Office  copies,  391 

secondary  evidence,  361 
Officer  of  bank,  admissions  by,  128 
Officers,  confessions  to,  149 
Official  acts,  regularity  presumed,  504 

communications,  affairs  of  State,  546 

reports  and  accounts,  203 

returns,  204 
Omnia  rite  acta,  693 
Opinion  as  to  sanity,  256-258,  262,  263 

of  a  nonexpert,  257 

as  to  mental  capacity,  263,  265 

on  question  of  damages,  258,  260,  263,  266 

as  to  value,  258,  259,  263,  265,  266.  275,  277,  281 

as  to  physical  condition,  259,  261,  262 

form  of  questions,  261,  271,  273 

as  to  identity  and  appearance,  261 

as  to  speed  of  a  train,  261 

based  on  hearsay,  264 

grounds  of,  298-300 

experiments,  299 
Opinion  evidence,  256-300 

generally  irrelevant,  256-267,  679 

by  experts  on  points  of  science  or  art,  267-282 

facts  bearing  on  expert  opinion,  283,  284 

as  to  handwriting,  285-295 

as  to  existence  of  marriage,  295-298 

grounds  of,  298-300 

weight  of,  262,  267 

where  description  is  inadequate,  265 
Opinions  of  experts,  facts  bearing  upon.  283,  284 

other  cases  of  poisoning,  283 

see  Expert  Opinion 


744  INDEX. 

[The  numbers  refer  to  pages.] 
Opportunity  for  an  occurrence,  58,  59 

to  do  an  act.  48 
Oral  evidence,  335-342 

must  be  direct,  335-342,  681 

manner  of  taking,  580 

of  contents  of  documents,  361 

to  alter  terms  of  a  written  instrument,  425-459 
Oral  interpretation  of  documents,  687 
Order  of  death  in  accidents,  497 
Order  of  proof,  18,  586,  591,  594 
Orders  in  council,  404 
Ordinances,  203,  214 

book  of,  386 

certified  copies,  396,  397 
Orphans'  court  decree,  conclusiveness,  249 
Other  crimes,  accidents,  fires,  etc.,  65-76 

Parent  and  child,  burden  of  proof,  491,  492 

Parish  register,  205 

Parliament,  judicial  notice  of  acts  of,  314 

of  procedure  and  privileges  of  each  House,  314 
Parol  evidence  rule,  425-459,  685 
Particeps  criminis,  confession  of,  140 

in  adultery,  541 
Particular  acts  of  unchastity,  630,  631 

facts,  burden  of  proving,  481—486 

falsehoods,  reputation  for  truth,  624,  625,  628 
Parties  and  privies,  judgments  conclusive,  224-234 

admissions  by,  106-118 
Partners,  admissions  by,  118,  122,  126,  128,  130 
Partnership,  admissions  to  prove,  127 

not  proved  by  repute,  303 
Partnership  books,  165 
Patent  ambiguity,  452,  454,  456 
Payment,  burden  of  proving,  466,  467,  486 

presumption  of,  after  lapse  of  time,  475,  478,  507-510 

oral  evidence  to  prove,  431,  443 
Pedigree,  declarations  as  to,  184-191 

blood  relations,  185 


INDEX.  74f> 

[The  numbers  refer  to  pages.] 
Pedigree  —  Continued 

time  of  making,  185 

ante  litem  motum,  188,  190 

family  conduct  188 

family  Bible,  188,  189,  191 

recognition  by  kinsmen,  189 

legitimacy,  189,  190 

form  of  declaration,  191 
Penalty,  compelling  production  of  documents,  559-561 

oral  evidence  to  explain  the  term,  452 

privilege  of  witness,,  562-567 
Percolating  waters,  no  presumption  of  grant  arises,  502,  503 
Perjury,  corroboration  required,  573,  574 

disqualification  on  conviction  of,  531 
Person,  compelling  examination  of,  337,  338 
Personal  custom,  40 

status,  judgments  conclusive,  222-224,  237 
Persons  concluded  by  a  judgment,  231,  233 

deceased,  declarations  by,  154-198 

having  joint  interest,  admissions  by,  118-131 

in  authority,  confessions  to,  142-150 

jointly  indicted,  533-540 

referred  to  by  party,  admissions  by,  134,  135 
Petty  jurors,  competency  of,  548-550 
Photographers  as  experts,  269 
Photographic  copies  of  handwriting,  291,  294 
Photographs,  210,  213,  336,  337,  339-342 

as  secondary  evidence,  337 

to  prove  identity,  342 

when  primary  evidence,  344,  346 
Physical  condition,  opinion  evidence,  259,  261 

examination,  336-340 

objects  as  evidence,  6 
Physicians,  privileged   communications,  559 

expert  evidence,  272,  277,  297,  281 
Physician's  record,  166 
Place  of  birth,  death,  etc.,  187,  189 
Plaintiff,  burden  of  proof  on.  460-467 
Pleadings,  admissions  in.  106,  332,  333 
Positive  and  negative  evidence,  11 


746  INDEX. 

[The  numbers  refer  to  pages.] 
Possession  of  deed,  evidence  of  delivery,  414 

of  land  under  deeds  thirty  years  old,  417,  419 

of  stolen  goods,  76-86 

to  prove  title,  34-37,  506 

to  raise  presumption  of  grant,  500 
Post-office  records,  201 

Practical  construction  of  documents  by  the  parties,  451,  454 
Preliminary  hearings,  evidence  at,  193,  198 

inquiries  of  a  witness,  15 

negotiations,  oral  evidence  of,  to  alter  writing,  436,  442 
Preparation  to  commit  an  act,  41-48 

Preponderance  of  the  evidence,  proof  by,  463,  470-472,  475 
Presumption  defined,  4,  5 

of  law  and  of  fact,  7,  11,  475 

as  to  order  of  dying  in  accidents,  497 

as  to  death  without  issue,  500 

of  death  from  seven  years'  absence,  497 

of  deeds  to  complete  title,  504 

of  gift,  508 

of  honesty,  508 

of  innocence,  468-472,  693 

of  legitimacy,  493 

of  lost  grant,  500 

of  marriage,  opinions,  295 

of  regularity  of  official  acts,  504,  693 

of  sanity,  508 

that  debt  is  paid  after  lapse  of  time,  475,  478 

that  existing  state  continues,  477 

that  one  intends  the  natural  result  of  his  acts,  508 

that  witnesses  are  competent,  520 
Presumptions,  xxiii 

of  fact  and  of  law,  11 

as  to  documents,  410-424 

as  to  date,  410-412 

as  to  stamp,  413 

as  to  sealing  and  delivery  of  deeds,  413-415 

as  to  documents  thirty  years  old,  415-419 

as  to  alterations,  419-424 

arising  from  lapse  of  time,  504-510 

of  payment,  507-510 


INDEX.  747 

[The  numbers  refer  to  pages.] 
Prevention  of  cruelty  to  children,  corroboration  required,  567-571 
Previous  conviction  to  shake  credit  of  witness,  G04-607 

contradicting  answers  of  witness,  609-612 
Previous  statements  in  writing,  cross-examination,  620,  621 
Price  lists,  214 
Prices-current,  213 

Priest  and  parishioner,  burden  of  proof,  490 
Prima  facie  case,  proof  required,  479 
Prima  facie  evidence,  7 

Primary  evidence  of  the  contents  of  documents,  xxi,  343-351 
Principal  and  agent,  burden  of  proof,  490,  491 
Principal  and  surety,  admissions  of,  119,  123,  125,  131,  133 
Printed  copies,  when  primary  evidence,  344,  346,  351 
Printed  laws,  215,  216,  389 
Printers'  copies,  403 
Private  boundaries,  182-184 

Privies  in  law,  blood,  or  estate,  admissions  by.  1 10-118 
Privilege  of  client  as  to  communications  to  attorney,  557,  558 

of  judges  and  attorneys,  544-546 

of  judges  and  witnesses,  696 

of  clergymen  and  priests,  698 

of  witness,  criminating  questions,  562-567 

of  witness,  discretion  of  the  court,  562-567 
Privileged  communications  between  attorney  and  client,  550-558 

between  husband  and  wife,  541-544 

to  clergymen,  559 

to  physicians,  559 

jurors,  548-550 

to  prosecuting  attorneys,  547 

as  to  affairs  of  State,  546 
Privileged  documents  in  hands  of  attorney  or  trustee,  561,  562 
Prize  court,  judgment  of,  221 

Probable  cause,  evidence  of  character  to  show  lack  of,  304 
Procedure  of  courts,  judicial  notice,  315 
Proclamations,  199,  200,  404 
Production  and  effect  of  evidence,  460,  692 

Production  of  documents  which  another  person,  having  possession, 
could  refuse  to  produce,  561,  562 


748  INDEX. 

[The  numbers  refer  to  pages.] 
Production  —  Continued 

of  objects  and  persons,  330-340 

of  person  before  the  jury,  337,  340 
Professional  communications,  550-550,  097 

duty,  declarations  in  course  of,  101-170 

time  when  made,   163,   104,   169 
Promise  of  secrecy,  confessions  obtained  by,   152-154 
Prosecuting  attorney  privileged  as  to  sources  of  information,  547 
Provincial  expressions,  oral  evidence  to  interpret,  444 
Public  agents,  admissions  by,  124 
Public  and  general  rights,  declarations  as  to,  180-184 

defined,  ISO 

when  relevant,  180 

maps,  181,  182,  184 

boundaries,  182-184 
Public  documents,  384-409,  684 

production  of  document  itself,  3S5-388 

examined  copies,  388-390 

general  records  of  the  realm,  390 

exemplifications,  391-393 

copies  equivalent  to  exemplifications,  394 

certified  copies,  394—403 

admissible  throughout  the  King's  dominions,  403 

King's  printers'  copies,  403 

Irish  statutes,  404 

proclamations,  orders  in  council,  etc.,  404 

foreign  and  colonial  acts  of  State,  judgments,  etc.,  407 

answers  of  Secretary  of  State  as  to  foreign  jurisdiction,  409 
Public  facts,  judicial  notice  of,  321,  322 

recitals  of,  199,  200 
Public  history,  judicial  notice,  322 
Public  officers,  judicial  notice  of,  320 
Public  records,  entries  in,  200-208 
Published  laws,  203 
Purpose  on  leaving  home,  56 

Qualification  of  an  expert,  207,  270,  271,  272.  277,  282 
Questions  lawful  on  cross-examination,  604-609 

leading.  600-603 

testing  veracity,  contradicting  answers  to.  609-612 


INDEX.  WJ 

[The  numbers  refer  to  pages.] 
Railway  experts,  273 
Rape,  burden  of  proof,  471 

character  of  the  complainant,  308,  310 

character  of  defendant,  309 

character  of  prosecutrix  for  chastity,  629-631 

complaint  of  female,  660 

corroboration  necessary,  571 

declarations  of  prosecutrix,  340 

fact  of  complaint  made,  49-58 
Real  evidence,  12 
Reasonable  doubt,  good  character  to  raise  a,  310 

proof  beyond  a,  468-472 
Rebuttal,  593 

explanatory  evidence  in,  60,  63,  64 

of  incompetent  evidence,  1 1 
Rebutting  evidence,  8 

Recalling  witness  for  further  examination,  585-595 
Receipts  as  evidence  of  payment,  507 

for  money  paid,  as  declarations  against  interest,  173 

oral  evidence  to  contradict  or  alter,  431,  434,  439,  442 

thirty  years  old,  417,  418 
Receiving  stolen  goods,  other  acts,  76-86 

Recitals  of  public  facts  in  statutes  and  proclamations,  199,  200 
Recollection,  refreshing,  632-638 
Record  of  baptism,  201,  206,  208 

of  an  instrument  as  primary  evidence,  346 
Records,  contents,  how  proved,  348 

of  a  court,  387 

exemplifications,  393 

certified  copies,  397,  401 

of  other  States,  certified  copies,  398 

oral  evidence  to  vary,  443 

thirty  years  old,  416 
Re-examination,  585-600 

limits  of,  596-600 
Reformation  of  a  contract,  oral  evidence  to  show  mistake,  426.  428 

of  instrument,  corroboration  required,  570 
Refreshing  memory,  632-638 

right  of  adverse  party  to  the  writing  used,  638 


750  INDEX. 

[The  numbers  refer  to  pages.] 
Refusal  to  answer  questions,  16 

to  produce  document,  party  barred  from  introducing  it,  640 
Register  of  baptisms,  162,  166,  201,  206,  208 

of  births,  marriages,  and  burials,  202,  205,  208, 
Regularity  of  official  acts  presumed,  504 
Relation  of  parties,  58-64 
Relationship,  declarations  as  to,  184-191 

not  to  be  proved  by  proof  of  personal  resemblance,  190 
Relatives,  admissions  by,  125 
Relevancy,  test  of,  14 

distinguished  from  proof,  xvii 

theory  of,  654 
Relevant  defined,  4,  6 
Relevant  evidence,  13-20 

to  prove  fraud,  18.  19 

to  prove  insanity,  18 

to  prove  forgery,  18 

in  rebuttal,  18 

assurance  of  counsel,  9,  18,  19 

instances  of,  19 

judge's  discretion,  if  bearing  is  remote,  13 
Relevant  facts  illustrated,  6 

Religious  exhortation,  confession  obtained  by,  146 
Remote  evidence,  14,  16,  17 
Reopening  the  case,  590,  591,  595 
Repairs  as  evidence  of  negligence,  44,  47,  48 
Representatives,  admissions  by,  110-118 
Reputation,  301-313 

generally  irrelevant.  301-305 

in  criminal  cases,  305-310 

as  affecting  damages,  310-313 

as  to  chastity,  302-305.  308-310,  313 

in  civil  proceedings,  301,  302,  305 

for  veracity,  302,  622-629 

in  rebuttal.  302,  304-310 

how  proved,  303-305,  308-312 

put  in  issue,  303 

in  divorce,  304 

of  witnesses,  304 


IXDEX.  751 

[The  numbers  refer  to  pages.] 
Reputation  —  Continued 

proof  of  specific  acts,  303-305,  308-312 

of  accused  for  truthfulness,  309 

in  libel  and  slander,  311-313 

in  the  family  to  prove  pedigree,  190 

to  prove  marriage,  295-298 

see  Character 
Rescission  of  written  contract,  oral  evidence  to  prove,  433,  438,  443 
Res  ges  tee,  20-29,  658 

narration  of  past  events,  23 

statement  of  patient,  24 

declarations  and  acts,  24 

illustrations,  24,  25,  28,  29 

defined,  20,  25,  28 

accidents,  28 

acts  and  words  of  bystanders,  28 

time  statements  must  be  made,  23,  28 

accompanying  statements,  51,  54,  55 
Res  inter  alios,  9,  65-76,  663 
Res  ipsa  loquitur,  476,  478,  479,  485 
Right  to  open  and  close,  464 
Rules  of  practice  of  courts,  judicial  notice,  315 

Sanity,  opinion  as  to,  256-258,  262,  263 

presumption  of,  508 

statements  accompanying  acts,  51 
Science  or  art,  defined,  267 

opinion  evidence,  267-284 
Scientific  books,  211,  214 

expert  testimony,  276,  284 
Sealing  and  delivery  of  deeds,  presumption  as  to,  413-415 
Seals,  judicial  notice  of,  316,  328 

of  foreign  governments,  317.  328 
Seamen,  evidence  taken  de  bene  esse,  584 
Secondary  evidence,  xxi,  361-383 

what  is,  361-364 

when  admissible,  365-379 

notice  to  produce.  379-383 

degrees  of,  364,  373,  378 


752  INDEX. 

[The  numbers  refer  to  pages.] 
Secondary  —  Continued 

preliminary  proof,  369,  377 
kinds  of,  373 

of  the  contents  of  documents,  425-459 
Secretary  of  State,  answers  as  to  foreign  jurisdiction,  409 
Seduction,  character  for  chastity,  302,  303,  305 

corroboration  necessary,  569-571 
Self-defense,  burden  of  proof,  471 
Self-serving  declarations,  106,  108,  109 

as  res  gestce,  108 
Self-serving  entries  in  books  of  account,  167 
Sense  of  impending  death,  157,  158,  160 
Separating  witnesses,  589 
Services,  opinion  as  to  value,  275 
Seven  years'  absence,  presumption  of  death,  497 
Sheriff,  admissions  of  debtor  as  against,  131 
Shifting  burden  of  proof,  472-480,  481 
Signatures  of  judges,  judicial  notice,  316 
Silence,  admissions  by,  105-109 

in  the  face  of  accusation,  58 
Similar  but  unconnected  facts,  65-76 

crimes,  accidents,  etc.,  65-76,  663 
Slander,  proof  of  character  to  mitigate  damages,  311-313 
Spiritual  adviser,  burden  of  proof,  490 
Stamp  of  a  document,  presumption  as  to,  413 
State  affairs,  official  communications,  546 
Statements  accompanying  acts,  49-58,  658 

in  presence  of  a  person,  49-58 

accompanying  acts  as  res  gestce,  21-29,  51,  54,  55 

of  agents,  as  res  gestce,  55 

to  physicians,  56 

inconsistent  with  present  testimony,  612-619 

in  books,  documents,  and  records,  199 

in  works  of  history,  maps,  charts,  and  plans,  209-217 

by  conspirators,  29-34 

explanatory  of  acts,  41-48 

of  intention,  43,  46 

by  deceased  persons,  154-198 

see  Declarations 


INDEX.  753 

[The  numbers  refer  to  pages.] 
Status  as  executor  or  administrator,  222,  223 

as  trustee,  222 

as  guardian,  222 

as  citizen,  222 

as  receiver,  222 
Statute  of  Limitations,  indorsements  on  notes,  171,  175,  17G 

admissions  of  agents,  119,  123,  131 
Statute  law,  xxix 
Statutes  relating  to  evidence,  707 

printed  copies  as  evidence  of,  347,  351,  375,  378,  389 

exemplifications,  392 

certified  copies,  396,  400 

Irish,  404 

judicial  notice  of,  316,  319 

of  other  States,  204,  214,  348,  375,  378 

and  proclamations,  199,  200 
Stenographer's  notes,  214 
Stock-books,  202,  205 
Stolen  goods,  receiving,  76-86 
Strangers,  admissions  by,  131-133 

alterations  by,  419,  422-424 

judgments  between,  234-238,  240-244 

to  documents,  oral  evidence  by,  457-459,  691 
Striking  out  testimony,  588,  593,  595 
Suborning  witnesses,  42,  44 
Subpoena  duces  tecum,  379-382 

refusal  to  produce,  380,  381 
Subscribing  witnesses,  opinion  as  to  sanity,  262,  263,  266 

see  Attesting  Witnesses 
Subsequent  agreements,  oral  proof  of,  to  add  to  or  alter  a  writing. 
426,  430,  433,  438,  443 

conduct,  41— 18 

precautions,  44,  47,  48 
Substituted  agreements,  oral  evidence  of,  to  alter  a  writing,  433,  443 
Suicide,  burden  on  insurance  company,  485 
Supplementary  agreements,  oral  evidence  of,  to  add  to  a  writing,  426, 

429,  430,  433,  443 
Sureties  concluded  by  judgment  against  their  principals,  242,  243,  244 
Surety  and  principal,  admissions  of,  119,  123,  125,  131,  133 

48 


754  INDEX. 

[The  numbers  refer  to  pages.] 
Surprise,  inconsistent  statements  of  witness,  619 
Surrounding  circumstances,  oral  proof  of,  444,  450,  453,  455 
Surveyors  as  experts,  269,  276 
Surveys,  204,  215 

thirty  years  old,  417,  418 
Surviving  party  incompetent  as  to  transactions  with  deceased,  528— 

532 
Sustaining  a  witness  whose  credit  has  been  impeached,  622-624,  627- 

629 
Sworn  copies,  389 
System,  facts  showing,  86-89,  663 

Tables,  life,  213,  214,  216 

tide,  212 
Tax  assessors'  books,  202 
Tax-books,  207 
Technical  terms,  expert  evidence,  280 

oral  evidence  to  interpret,  444,  451,  455 
Telegrams,  primary  evidence,  345,  346 

paper  delivered  is  secondary  evidence,  364 
Telephone,  conversations  by,  337 
Tenant  estopped  to  deny  landlord's  title,  514 
Testamentary  capacity,  462,  466,  482,  483,  484,  486 

opinion  evidence,  256-258,  262,  263,  265,  276 
Testator,  communications  to  attorney,  554 

surrounding  circumstances,  62 

declarations  by,  as  to  contents  of  will,  177-179 

as  to  capacity  to  make  a  will,  178,  179 

to  show  undue  influence,  179 

as  to  his  intention,  179 
Testimony  defined,  6 

based  on  hearsay,  100 

de  bene  esse,  584 
Testing  accuracy,  veracity,  or  credibility,  604-609 
Theory  of  relevancy,  654 
Threats,  43^8 

confessions  obtained  by,  141-150 
Tide  tables,  212 


INDEX.  755 

[The  numbers  refer  to  pages.] 
Time,  presumption  as  to  death,  497-500 

and  place  of  reputation  for  truth,  628 

for  objecting  to  evidence,  G03 
Title,  34-37,  657 

declarations  in  disparagement  of,  174,  175,  176 

compelling  production  of  deeds,  559-561 

of  landlord,  estoppel  of  tenant,  514 
Town  clerk's  record,  202 
Trade  customs,  39,  40 
Transaction,  facts  forming  part  of  one  and  the  same,  20-29 

illustrations,  24,  25,  28,  29 
Transactions  with  one  deceased,  528-532 
Transcript  of  justice,  205 
Transcripts  of  judgments,  398,  400,  402 

of  court  records,  401 
Treason,  number  of  witnesses,  572-574 
Treaties,  judicial  notice,  318 
Trust,  oral  evidence  to  establish,  430,  435,  438 
Trustee  and  beneficiary,  burden  of  proof,  490 
Trustees,  admissions  by,  125 
Truth  and  veracity,  reputation  for,  622-629 

Unconnected  facts,  65-76 

Undue  influence,  burden  of  proof,  483 

competency  of  wife,  543 

relation  of  parties,  58-64 
Unintelligible  documents,  oral  evidence  to  interpret,  444 
Unmeaning  documents,  interpretation  of,  444 
Unresponsive  answers,  589,  590,  593,  595 
Unsworn  evidence  of  young  child,  576,  700 

of  barrister,  579 
Usage,  oral  proof  of,  to  add  to  or  alter  a  writing,  426,  430,  434,  439 

to  explain  terms  of  a  document,  452,  454 

Value,  opinion  evidence,  258,  259,  263,  265,  266,  275,  277,  281 
of  chattels,  266 
of  services,  275 
evidence  as  to  similar  property,  69-75 


756  INDEX. 

[The  numbers  refer  to  pages.] 
Veracity,  reputation  for,  302,  622-629 

questions  to  test,  604—609 
View  by  jury,  336-338,  340,  341 
Voluntary  confession,  what  is,  138-141 

Waiver  of  written  contract,  oral  evidence  to  prove,  433,  438,  443 

Want  of  jurisdiction  in  procuring  a  judgment,  246-251 

Warranty,  oral  proof  to  add  to  a  writing,  428 

Weak  evidence,  18 

Weather  reports,  166,  205 

Weight  of  admissions  as  evidence,  106 

Wife,  see  Husband  and  Wife 

Wife-beating,  competency  of  Avife,  539 

Wills,  declarations  of  testator  as  to  contents,  177-179 

genuineness,  177 

forger y  of,  178 

opinion  of  subscribing  witnesses  as  to  sanity,  262,  263,  266 

oral  declarations  to  alter,  436 

attesting  witnesses,  355,  358 

certified  copies  of,  397,  399,  400 

confidential  relations,  burden  of  proof,  491 

interpretation  of,  444-456 

lost,  372 

thirty  years  old,  417,  419 

presumption  as  to  alterations,  420,  424 
Withdrawing  testimony  from  the  jury,  586,  591,  593 

incompetent  evidence  cures  error,  652 
Witness,  competency  of,  520,  695 

death  of,  during  course  of  testimony,  586,  591 

not  to  be  compelled  to  criminate  himself,  562-567 
Witnesses  incompetent,  695 

number  required,  572-574 
Women,  offenses  against,  629-631 

Words  in  peculiar  senses,  oral  evidence  to  interpret,  444,  451,  452,  454 
Writings,  alteration  of.  by  oral  evidence,  425-459 
Written  admissions,  109 

hearsay,  94,  97,  99,  100 

Youth  as  affecting  competency,  520 


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